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Baring Inequality: Revisiting the Legalization Debate Through the Lens of Strippers’ Rights
The debate over legalization of prostitution has fractured the feminist legal community for over a quarter century. Pro-legalization advocates promote the benefits attending government regulation of prostitution, including the ability to better prosecute sex crimes, increase public health and educational resources for individuals in the commercial sex trade, and apply labor and safety regulations to the commercial sex industry in the same manner as they are applied to other businesses. Some anti-legalization advocates identify themselves as "new abolitionists," and argue that government recognition of prostitution reinforces gender inequality. Often, this debate is framed in the hypothetical: What would happen if sex work were legalized? When deploying the hypothetical, advocates elide the reality that the commercial sex industry is legal in the United States for a large swathe of workers in the industry: strippers. Stripping, as this Article will describe, is analogous to prostitution in that every interaction between stripper and customer is a performance of intimacy geared toward sexually and emotionally satisfying the customer in exchange for money. During these performances, strippers are often isolated with customers, thereby vulnerable to physical and sexual assault. Applying the argument of legalization advocates, strippers should experience better protection than individuals engaging in prostitution because their work is legal and thus subject to government oversight. But does this argument hold true? This Article examines strippers' experiences as a case study for how the legalization argument for prostitution falls short of its promises. Despite the fact that stripping for money is legal, the stripper's body remains a site of deep controversy in American culture and legal jurisprudence. Her dance is seen both as a threat to social order and an act of expression to be protected. Her work, legally recognized labor, is nonetheless ignored when it is not reviled. Unlike workers whose labor is seen as "legitimate" in the eyes of the law, the stripper operates in a murky zone of legal protection laden with qualifications and contradictions. While legalization has led to heavy regulation, it has failed to protect strippers and has arguably made them more vulnerable by lending a false veneer of legitimacy to strip clubs' labor practices. In the past thirty years, legal doctrine has developed in two distinct substantive areas that exacerbate strippers' poor working conditions: 1) strippers' classification as independent contractors and consequential exclusion from protective labor statutes, and 2) First Amendment jurisprudence that permits regulation of strip clubs, but has not produced meaningful protective regulations for strippers. These doctrinal developments are entangled in underlying social narratives about the worth of sexual labor and the place of the strip club in a morally upright community.“Off with His __”: Analyzing the Sex Disparity in Chemical Castration Sentences
Societies around the world have performed castration, in its various forms, on their male and female members for thousands of years, for numerous reasons. Even within the United States, prisoners have been sentenced to castration (as a form of punishment or crime prevention) since the early twentieth century. In recent years, legislatures have perpetuated this practice but with a modern twist. Now, states use chemical injections to castrate their inmates. It turns out, however, that systemic problems plague the chemical castration sentencing regime. These problems arise from the nature of the crimes eligible for chemical castration sentences, the manner of prosecution of the criminals, and the exercise of judicial discretion when selecting the sentence. Therefore, the public, the government, and the criminals themselves have each contributed to the chemical castration sentencing regime's single greatest flaw: the punishment of chemical castration is, in effect, reserved exclusively for use against male offenders. This Note, broken into six parts, discusses the disparate impact of the current chemical castration regime on male offenders and provides insight into why and how the system must change to eliminate or reduce this disparity.Modernizing State Vital Statistics Statutes and Policies to Ensure Accurate Gender Markers on Birth Certificates: A Good Government Approach to Recognizing the Lives of Transgender People
Across the country, laws governing corrections to gender markers on birth certificates are relatively uniform, in large part because many states adopted the relevant provisions of the 1977 revision of the Model State Vital Statistics Act (MSVSA). The MSVSA, developed by the U.S. Department of Health and Human Services, guides states on the most efficient laws and procedures related to maintaining accurate birth, death, and other vital records at the state, local, and territorial level. At the time when the government promulgated the MSVSA provision related to gender corrections, it served as a forward-thinking model because it acknowledged that vital records should be corrected in the case of individuals who change their gender. Specifically, the 1977 MSVSA recommended that corrections to gender markers on birth certificates be granted after applicants change their sex by "surgical procedure" and provide a court order to that effect. Additionally, the MSVSA recommended that the correction be kept private. Over the past three decades, transgender legal rights have advanced and understanding of transgender medicine has evolved. Experts in transgender law and medicine entirely reject the idea that recognition of a person's gender should come only after surgery. This notion has also been significantly eroded in law and policy. Yet, with the exception of new laws and/or policies in three states, birth certificate statutes and policies have yet to be modernized in this respect. This Article explains why and how state, local, and territorial birth certificate laws and regulations ought to be revised based on changes in law and medicine. In addition, the Article discusses public policy factors that governments should consider when modernizing their policies, including the cost of various policies and the policies' legal and practical effects on the lives of transgender people.The Role of Networks, Mentors, and the Law in Overcoming Barriers to Organizational Leadership for Women with Children
The 2012 election brought headlines such as "Another 'Year of Women' in Congress." Although the number of women in the highest legislative offices increased, their numbers are still significantly lower than those of men. Fewer than 100 women hold office in both houses of Congress. Corporate America similarly reflects significantly low female leadership numbers. For example, "fewer than 20% of finance industry directors and executives are women, and [there are] no women leading the 20 biggest U.S. banks and securities firms." Women make up nearly half the workforce and hold 60% of bachelor degrees, yet they hold only 14% of senior executive positions at Fortune 500 companies and 40% of managerial positions overall. These figures have persisted unchanged since 2005. Subtle yet entrenched forms of gender discrimination have clearly stalled women's career progress, and more must be done to rectify these disparities. The differences in gender outcome may be a function of demand-side (work-related) and supply-side (worker-related) characteristics. These include personal characteristics, human and social capital, and developmental, interpersonal, and situational factors. Gender overlaps with multiple group memberships based on family status, race, religion, national origin, and disability. These group memberships also influence women's status and power dynamics in the family, the workplace, and in other communities. The interplay of these factors makes gender-based discrimination an interesting phenomenon to explore. Having dependents is an important family status variable in the larger scheme of social differentiators that account for sex differences in careerrelated outcomes. In this study, we are interested in whether men or women benefit more from having access to networks when they have dependents. Prior studies have shown that mentoring and networking are major components of professional development that lead to career advancement. We are also interested in whether the outcome differs for those men and women who report having mentors.Outing the Majority: Gay Rights, Public Debate, and Polarization after Doe v. Reed
In 2010, the United States Supreme Court ruled in Doe v. Reed that Washington citizens who signed a petition to eliminate legal rights for LGBT couples did not have a right to keep their names secret. A year later, in ProtectMarriage.com v. Bowen, a district court in California partially relied on Reed to reject a similar request from groups who lobbied for California Proposition 8-a constitutional amendment that overturned the California Supreme Court's landmark 2008 gay marriage decision. These holdings are important to election law, feminist, and first amendment scholars for a number of reasons. First, they flip the traditional roles of the civil rights litigants from earlier cases, like NAACP v. Alabama. In those early cases, publicly persecuted groups sought protection from disclosure laws, but, here, the persecutors themselves are looking for help. Second, the Doe v. Reed opinion, and especially Justice Scalia's concurrence, articulate an age-old conception of republican citizenship, one supported by a number of modern and contemporary political theorists. Last, this conception of citizenship has interesting, and largely positive, implications for political polarization, especially in the context of LGBT rights. It facilitates the realization of the fruits of hard-fought public opinion victories by the LGBT community and their allies. The Reed holding has the potential to help turn the ever-growing support for LGBT rights into concrete policies in the next decade. Marriage rights and employment protections for gays, lesbians, and transgender Americans have been put up for public referenda in a number of states. While the last few months have seen a number of key victories for the LGBT community, most states still have laws preventing gay and lesbian couples from marrying. Increased transparency might be good for LGBT legislative battles for a number of reasons. I argue that the LGBT movement is at a place where embracing Scalia's combative public citizenship is a winning strategy. Justice Scalia has provided the LGBT community with a critical weapon in its fight for marriage equality. By examining political science literature and public opinion polling, I hope to show that making public ballot initiatives transparent will curb the trend of states taking away rights and privileges from their LGBT citizens. I share the concerns of commentators like Cass Sunstein, who fear the phenomenon of insular political communities moving to extremes. I also share the concerns of thinkers ranging from James Madison to Alexis de Tocqueville to modern day political scientists about political majorities targeting unpopular minorities in winner-take-all elections. The "brave citizen" of Scalia's concurrence is a conception of deliberative democracy that serves the LGBT community well. In this Note I look at the likely impact of Doe v. Reed on the politics of the fight for LGBT rights.Bathroom Bias: Making the Case for Trans Rights under Disability Law
Disability law is one of the more successful tools currently being used to protect trans people fom discrimination. While the use of disability law as a framework for affirming or creating trans rights has come with some success, many in the community remain reluctant to use disability law for fear of the policy implications and stigma associated with medicalization of trans identity. After exploring the current state of the law on both the federal and state level, this Note will argue how disability law both could and should be used more often to further trans protections. In particular, this Note will look at the role of bathroom access in the fight for trans civil liberties and how disability law might be used to affirm trans people's access in the workplace to gendered bathrooms that accord with their lived sex.Flexible Scheduling and Gender Equiality: The Working Families Flexibility Act Under the Fourteenth Amendment
The Working Families Flexibility Act (“WFFA”) as proposed in 2012 would create a federal right for employees to request flexible work arrangements. However, the bill contains no private right of action for employees to enforce this new right. By reframing the WFFA as an anti-discrimination statute targeting unconstitutional sex discrimination on the part of the States, the WFFA could be upheld under Section 5 of the Fourteenth Amendment, allowing Congress to provide a private right of action for both private and state employees. This Note uses the Supreme Court’s decisions on the Family Medical Leave Act in Hibbs and Coleman as the basis for analyzing how the WFFA might be upheld under the Enforcement Clause. It also argues that, in order to advance workplace equality, the WFFA should be reframed to target “work-life” balance, rather than specifically “work-family” balance. Because caregiving is so frequently viewed as a women’s issue, as long as flexible scheduling is understood as a policy for caregivers, it will be seen as a policy for women and carry the burden of stereotypes associated with working mothers. To make fundamental improvements in workplace gender equality, we need to decouple the link between flexible scheduling and caregiving.The Scarlet Letter: The Supreme Court and the Language of Abortion Stigma
Why does the Supreme Court refer to the woman who is seeking an abortion as "mother"? Surely the definition has not escaped the attention of a Court that frequently relies on the dictionary to define important terms or principles. And why does the Court choose to describe the fetus as a child? What message does this language send about abortion and the woman who seeks an abortion? The Court's abortion decisions embody an ongoing debate on the legitimacy of constitutional protection of the right to choose. This debate unfolds most obviously as a discourse on constitutional interpretation; disagreements within the Court are reflected in the language of constitutional principles and standards. This debate also plays out, hidden in plain view, in the vocabulary used by the Court to describe the woman who stands at the center of the constitutional controversy and the life within her. The opinions of the Court, beginning with Roe, mediate abortion stigma through both language and legal standards. The Court's framing of the abortion procedure, of the woman and physician, and of prenatal life has contributed to the ascendancy of abortion stigma. Casey, in particular, marks a turning point, where the Court's overt expression of moral disgust with abortion correlates with diminished constitutional protection. This article examines how the abortion decisions contribute to abortion stigma. It argues that several narratives emerge from the vocabulary deployed by the Court to describe both the woman who seeks an abortion and prenatal life. These narratives serve a potent expressive function. Most display considerable ambivalence about the moral authority of women, particularly women who decide, even temporarily, not to become mothers. From Roe onward, the Court has reinforced abortion stigma through discourse as well as constitutional standards. This stigma marginalizes both the abortion procedure and the woman who seeks an abortion. This marginalization, in turn, provides justification for increasing restrictions on a woman's access to abortion.The Exit Myth: Family Law, Gender Roles, and Changing Attitudes toward Female Victims of Domestic Violence
This Article presents a hypothesis suggesting how and why the criminal justice response to domestic violence changed, over the course of the twentieth century, from sympathy for abused women and a surprising degree of state intervention in intimate relationships to the apathy and discrimination that the battered women' movement exposed. The riddle of declining public sympathy for female victims ofintimate-partner violence can only be solved by looking beyond the criminal law to the social and legal changes that created the Exit Myth. While the situation that gave rise to the battered womens movement in the 1970s is often presumed to be part ofa long history of state tolerance or even approval of violence against women, the real history is actually much more complicated. Indeed, at least until 1930, wife beaters were routinely brought to criminal court and fined or sentenced to a jail term. Whereas wife killers often faced life imprisonment or even the death penalty, juries acquitted many women who used lethal violence against their abusive husbands. What happened between the 1920s and the later decades of the twentieth century that changed how the public and the criminal justice system responded to domestic violence? This Article offers the following hypothesis: As women gained the vote and sought easy access to divorce, and as mothers of minor children began to compete for jobs formerly held exclusively by men, society and the criminal justice system less often saw abused wives as frail beings who needed protection against their violent husbands. Changes in employment opportunities, family and property law, and psychosocial understandings of intimate relationships combined to create a false sense of the ease with which women could exit an abusive marriage. This overestimation ofwomen ' ability to leave, paired with the new view that women did not need to be protected in paternalistic ways, contributed to waning sympathy for female victims of intimate-partner violence. In the second half of the twentieth century, such women were presumed-often unfairly and incorrectly-to be capable of safely leaving their relationships and supporting themselves. As gender roles changed to allow greater female autonomy, the criminal justice response may have become more punitive and less sympathetic toward women trapped in violent intimate relationships.Surrender and Subordination: Birth Mothers and Adoption Law Reform
For more than thirty years, adoption law reform advocates have been seeking to restore for adult adoptees the right to access their original birth certificates, a right that was lost in all but two states between the late 1930s and 1990. The advocates have faced strong opposition and have succeeded only in recent years and only in eight states. Among the most vigorous advocates for access are birth mothers who surrendered their children during a time it was believed that adoption would relieve unmarried women of shame and restore them to a respectable life. The birth mother advocates say that when they surrendered their children, their wishes were subordinated and their voices silenced. They say they want to be heard now as they raise their voices in support of adult adoptees' rights to information in government records about their birth mothers' original identities. Opponents of restoring access, in "women-protective rhetoric" reminiscent of recent anti-abortion efforts, argue that access would harm birth mothers, violating their rights and bringing shame anew through unwanted exposure of out-of-wedlock births. Opponents say they must speak for birth mothers who cannot come forward to speak for themselves. Birth mother advocates respond that the impetus historically for closing records was to protect adoptivefamiliesfom public scrutiny and from interference by birth parents, rather than to protect birth mothers from being identified in the future by their children. They maintain that birth mothers did not choose and were not legally guaranteed hfelong anonymity. They point out that when laws that have restored access have been challenged, courts have found neither statutory guarantees of nor constitutional rights to, anonymity. They also offer evidence that an overwhelming majority of birth mothers are open to contact with their now grown children. As a means of assessing these competing claims, this article analyzes the provisions in a collection of birth mother surrender documents assembled by the author-seventy-five mid-twentieth century documents executed in twenty-six different states. In order to establish the significance of the surrender document provisions with respect to these claims, the article first relates depictions by birth mothers of ajourney from silence to legislative advocacy. The article then examines the conflicting claims about birth mothers that pervade legislative contests over adult adoptee access to original birth certificates. Finally, the article analyzes the provisions of the surrender documents. The analysis of the provisions definitively supports birth mother advocates' reports that women were neither offered a choice of nor guaranteed lifelong anonymity. Their opponents' contentions to the contrary, whether motivated by concern for birth mothers or other interests, reinscribe an earlier culture ofshame and secrecy, subordinating women own wishes and silencing their newly raised voices.