DePaul Journal of Women, Gender and the Law
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Open Access journal
ISSN (Print) 2167-0560
Published by DePaul University [5 journals]
- Egg Freezing on Company Dollars: Making Biological Clock Irrelevant?
Authors: Madhumita Datta
Abstract: In an attempt to boost gender diversity, two of the technology giants of Silicon Valley, Apple and Facebook, announced in October 2014 that they would cover the costs of freezing eggs, so that women employees who want to pursue both motherhood and a serious career could conveniently ‘time’ their pregnancy. Intel followed suit in October 2015. Unlike other reproductive benefits aiming to cure a biological deficiency such as infertility, employers promote egg freezing as an investment towards women employees’ career success. Women employees may take advantage of this benefit for non-medical reasons to delay pregnancy and childbirth because of the lure of making the biological clock irrelevant on the employers’ dime, perhaps ignoring the possible emotional costs of delaying motherhood. This paper concludes that women should not outsource the responsibility of striking a balance between a rewarding career and a fulfilling motherhood to their employers. Delaying motherhood to achieve other personal goals may produce negative consequences for women and the society in general. Instead of trying to dictate the most private decisions of an employee’s life, employers should recognize parenthood as a natural phenomenon that may happen to both men and women within the span of their employment, and strive to design employee benefits that reflect a commitment to be supportive of parenthood. At the most egg-freezing can be included within an array of other family-friendly benefits such as adoption assistance, flexible work schedule, paid parental leave, infertility treatment and the like.
PubDate: Mon, 06 Feb 2017 10:35:27 PST
- A Problem of Competing Interests: A Detailed Look at Transgender Children
Authors: Corinne Cundiff
Abstract: Discrimination of transgender students is an area of the law that is rapidly developing. Unfortunately for schools trying to find guidance in the law, there are conflicts regarding how schools are to work with their transgender students when it comes to access to gender specific spaces, including bathrooms and locker rooms. There is currently a disagreement among federal agencies, the courts, and the legislature regarding the protection gender identity should receive in the law. The difference of opinion among the various branches of the government equates to problems for schools that are trying to navigate this area of the law. This article details the current conflicts and how some school districts are responding. The article concludes with a recommendation that action must be taken in order for this area of the law to become more clear for schools and in particular transgender students.
PubDate: Mon, 06 Feb 2017 10:35:24 PST
- Refugee Roulette: A Comparative Analysis of Gender-Related Persecution in
Authors: Joanna J. Kallinosis
Abstract: From the moment Rodi Alvarado Pena married a Guatemalan army officer at the age of 16, she was subjected to intensive abuse, and all her efforts to get help where unsuccessful. Her husband raped and sodimized her repeatedly, attempted to abort their child by violently kicking her in the spine, dislocated her jaw, attempted to cut her hands off with a machete, kicked her in her genitals and used her head to break windows. He terrified her by bragging about his power to kill innocent civilians with impunity and all of Rodi’s pleas for help from the Guatemalan government were ignored.In 1999, the United States denied asylum to the Guatemalan women who survived these torturous acts and escaped to Texas seeking refuge. The panel of asylum judges in In re R-A- reasoned Rodi Alvarado Pena was ineligible for refuge because she had “not adequately established we should recognize, under our law, the particular social group” she seeks to advanceThis essay examines the existing law regarding gender related persecution and the burden imposed on female asylum applicants to fit their claims within the circumscribed notion of a refugee within Immigration law of the United States of America. Such difficulties are contrasted with the Canadian Immigration system, where women enjoy greater freedom in the interpretation of requisites necessary to be granted asylum. Section I of this essay explores the problems women face in gaining asylum in the United States. Section II of this essay will analyze the conflicting claims and claimants. Section III of this essay will explore past trends in asylum law; discuss the framework for evaluating asylum claims under current US asylum law; analyze the competing judicial interpretations of asylum law and discuss the inconsistency of judicial decisions. Section IV of this essay will discuss the projection of future trends. Section V of this essay will propose an amendment to the Refugee Act to include a Sixth category of gender or sexual persecution.
PubDate: Mon, 06 Feb 2017 10:35:21 PST
- A Call for Limiting Absolute Privilege: How Victims of Domestic Violence,
Suffering with Post-Traumatic Stress Disorder, Are Discriminated Against
by the U.S. Judicial System
Authors: Jerrell Dayton King et al.
Abstract: The U.S. court system often traumatizes victims of domestic violence (“DV”) through institutional gender discrimination, which has plagued women throughout the United States since colonial American times. In many ways the court system becomes a participant in re-victimizing and continuing the abuse of the DV victim. Abusive power and control of women exposes them to DV in alarming numbers; this causes many DV victims to experience severe trauma that results in psychological injuries such as Post-Traumatic Stress Disorder (“PTSD”). In the court system, the DV abuser enters the legal process with an advantage over his victim who suffers from PTSD. Absolute privilege and the innately adversarial nature of the family law court system harms the DV victim who is ill prepared mentally, physically, and emotionally to wage legal war against her abuser; thus, the abuser manipulates the court system as a weapon to inflict additional harms against his psychologically injured victim. As a result, the victim leaves the court with an unjust and unfair judicial outcome. Such a result runs afoul to the principles of the U.S. legal system. Reforms to the U.S. court system need to be enacted to protect injured DV victims who suffer from PTSD. The Americans with Disabilities Act (“ADA”) requires public spaces to be changed to allow free and open use of public services for people with disabilities to exercise their legal rights. DV victims suffering from PTSD should have the same legal protection afforded by the ADA in order to modify absolute privilege, allowing for a just and fair legal outcome in cases with their abuser.
PubDate: Mon, 06 Feb 2017 10:35:18 PST
- Legislating on Violence Against Women: A Critical Analysis of
Nigeria's Recent Violence Against Persons (Prohibition) Act, 2015
Authors: Cheluchi Onyemelukwe
Abstract: In many African countries, as in other countries around the world, women suffer violence on the basis of their gender. Unfortunately, many countries lack legislation that provide effective protections against gender-based violence. Evidence from Nigeria, including the passage of new legislation at federal and state levels, suggests some progress. How effective such laws will be is yet to be seen. This paper begins the process of investigating the potential for the effectiveness of these new laws by conducting an in-depth analysis of Nigeria’s recently enacted Violence Against Persons (Prohibition) Act, 2015. This examines the relevance of the Act and its significance for issues around violence against women. This critique investigates the provisions of the Act alongside internationally accepted best practices and standards on legislation against gender-based violence. From this analysis, the article identifies gaps within the provisions articulated in the Act. It also examines the place of the VAPP Act amongst the pantheon of extant laws addressing violence against women. It argues that, by itself, the law will have only a limited impact, in part because of its limited geographical reach. This impact can only be moderated by intensive advocacy to ensure that this legislation is adopted by all States in the federation. The paper suggests the next steps after enactment to ensure effective implementation. The article concludes that the enactment of the Act is a positive step, which has the potential to provide effective protections for women against gender-based violence. However, gaps exist in the legislation, which will need to be remedied. Finally, specific actions will need to be taken to move the law from words on paper to active implementation and protection of women from gender-based violence in Nigeria.
PubDate: Mon, 30 May 2016 11:50:13 PDT
- Postscript to Hobby Lobby: Prescription for Accommodation or Overdose?
Authors: Paula Walter
Abstract: This article contends that, consequent to the Court’s ruling in Hobby Lobby, the efforts of the challengers to use the judiciary to derail the legislatively enacted contraceptive mandate provisions of the ACA have been successful, and suggests alternatives for dealing with the flood of anticipated accommodation claims.
PubDate: Mon, 30 May 2016 11:50:10 PDT
- You Can't Remain Neutral on a Moving Train – Marriage Equality in
the States & Ireland: Thoughts on Freedom to Marry, Religious
Heteronormativity, and Conceptions of Equality
Authors: Kris McDaniel-Miccio
Abstract: This title, in part, was one of the famous phrases uttered by the brilliant historian Howard Zinn, a wonderful image that applies to advocating social justice. In the United States, the train referenced by Zinn was the Freedom Train, whether it be toward gender, racial or ethnic parity. Now it is the Freedom to Marry Train and it has not only left the station, it is moving at break- neck speed and almost unstoppable. This Train built with the blood, sweat and tears of the LGBTI community, forged by fire and situated on a justified track. There is no difference between this train and the 1964 Freedom Train: both are about freedom and equality and both demand that we climb aboard, or as Zinn reminds, be left behind in the dust of inequity.
PubDate: Mon, 30 May 2016 11:50:06 PDT
- All Is Not Fair In Love And War: An Exploration of the Military
Authors: Meghan O'Malley
Abstract: Sexual assault has become pandemic and even a common occurrence among the ranks of all branches of the U.S. military. The Department of Defense estimates that in the year 2012 alone, 26,000 active duty soldiers were sexually assaulted. The military rape culture was thrust to the forefront of the media in 1991 as a result of the Tailhook Scandal. The military and Congress have not sat idly by, but twenty-three years and hundreds of thousands of assaults later, nothing has successfully alleviated the rates of sexual violence.This paper explores why such efforts have failed to produce the desired results and what must be done moving forward. It cannot be that the military is simply stubbornly anti-feminist. I offer that such past efforts fall flat because they fail to permeate the hyper-masculine military culture. In order to make real change, the military must rebrand itself in a way that encourages female leadership and moves beyond the inhibitions imposed by “hyper-masculinity.”
PubDate: Thu, 17 Dec 2015 15:25:37 PST
- The Constitution and Societal Norms: A Modern Case For Female Breast
Authors: Brenna Helppie-Schmieder
Abstract: “The Constitution and Societal Norms: A Modern Case for Female Breast Equality” argues that laws prohibiting the public display of the female breast, but not the male breast, are unconstitutional under the Fourteenth Amendment’s Equal Protection Clause. That these laws discriminate against women is obvious, yet courts have historically refused to recognize an Equal Protection Clause violation. However, the primary reasons courts rely upon are ripe for review. Most significantly, courts typically justify female breast censorship laws based on the government interest in protecting public sensibilities, without recognizing that public sensibilities change. Indeed, perceptions of the public female breast have changed. Taking these modern-day perceptions into account reveals that the protection of public sensibilities is, in fact, an inadequate governmental interest. Moreover, the Equal Protection Clause principles, as articulated in US v. Windsor and Obergefell v. Hodges, provide further support for finding female breast censorship laws unconstitutional. This Article also explains why female breast censorship laws are normatively harmful to both women and society. Ultimately, “The Constitution and Societal Norms: A Modern Case for Female Breast Equality” argues that laws prohibiting the public display of the female breast, but not the male breast, are harmful, outdated, and unconstitutional.
PubDate: Thu, 17 Dec 2015 15:25:35 PST
- Mothers Behind Bars: Breaking the Paradigm of Prisoners
Authors: Anna Mangia
Abstract: Prison is an oppressive institution created for men, by men. While some may argue that oppression is the point of prison, this oppression is still created for and directed toward men. Because the paradigm of a prisoner is a violent male, the needs and concerns of women are often not considered. Female prisoners, therefore, experience layers of oppression: intended oppression inherent in the prison system, as well as gender-based oppression inherent in our society. Furthermore, incarcerated mothers experience a third layer of oppression due to their roles and expectations in society. “The mother” is glorified, but when a woman breaks society’s expectation of what a mother should be, it looks to punish her more severely than it otherwise would if she were not a mother. Incarcerated women break the white middle-class standards of “womanhood.” Society justifies its classification of these women as unfit mothers based on their race, class, and incarcerated status. Our society systematically decides women in prison are unworthy of being mothers and tries to deny reproductive and parental rights to those who are incarcerated.In this paper, I explore the additional layers of oppression that incarcerated mothers experience. In Part I, I provide an overview of women in prison. In Part II, I delve into the unique concerns of incarcerated mothers, including the history of eugenics, reproductive oppression in prison, and the concerns of pregnant inmates and mothers in prison. In Part III, I examine the response to incarcerated mothers, which includes an overview of prison nurseries and community-based residential parenting programs. In Part IV, I critique these responses and suggest additional solutions. Through this analysis, I argue that instead of subjecting incarcerated women to varied forms of reproductive oppression, we should allow incarcerated women to embrace the role of motherhood through various programs.
PubDate: Thu, 17 Dec 2015 15:25:34 PST
- Covernance: Feminist Theory, the Islamic Veil, and the Strasbourg
Court's Jurisprudence on Religious Dress-Appearance Restrictions
Authors: Amina Haleem
Abstract: This paper explores how the human right of religious freedom has been conceptually and pragmatically developed under international law within the European Court of Human Rights as applied to veiled Muslim women. This paper analyzes the application of human rights guarantees as established in the European Convention on Human Rights and case law established by the European Court that has interpreted international documents to determine the religious freedoms of veiled Muslim women in the public sphere. The analytical framework identifies the divergence between liberal and third wave feminist approaches to the Islamic veil, and identifies the feminist approaches to international human rights.The European Court has staunchly upheld governmental restrictions on Islamic veiling across Europe under Article 9 of the European Convention. This has disparately impacted religious freedom of Muslim women and their ability to manifest religion through their dress- appearance. Challenging the Court’s normative application, and discriminatory outcomes, of Article 9 jurisprudence through postmodern and postcolonial feminist interpretations of religious freedom may provide an opportunity to strengthen and elevate diverse female voices, like those of veiled Muslim women, in the review of dress appearance restrictions. Challenging Article 9 jurisprudence will help break the institutionalization of a harmful stereotype of the Islamic veil that relegates religious women to the darkest corners of European society. Women who have made a conscious choice to wear the Islamic veil need governmental and judicial protection of their religious freedom and of the ability to embrace the dynamic aspects of their gender, religion, identity, and autonomy in a secular Western society. Without this protection, veiled women will continue to live under a restrictive form of covernance - a discriminatory system of governance that restricts the way they manifest their religious belief by covering their bodies in the public sphere.
PubDate: Thu, 17 Dec 2015 15:25:32 PST
- Divorcing Gender From Marriage: A Feminist Perspective on the
Jurisprudence of Transgendered Marriage
Authors: Michelle Cass
Abstract: Sex is an immutable characteristic; says who' As transgendered people and LGBTQQ (lesbian, gay, bisexual, transgender, queer, questioning) issues gain more traction and recognition, the clear contours of sex and gender are fading, and a more fluid concept of gender is emerging. However, the American legal system lags behind the mutability of gender in an environment where the conceptualization and understanding of gender is becoming ever more nuanced and complex. This is most apparent in the law’s treatment of transgendered marriage: a marriage involving at least one person who identifies as transgendered. A transgendered person can be defined as a person who identifies as a gender that is different than the gender assigned based on his or her sex at birth, inclusive of those who have or have not transitioned, had sex-reassignment surgery, executed a name change, or modified the gender marker on his or her legal documents. The law’s rigid response to the complications that transgendered marriage presents in the wake of unlawful same-sex marriage, is to wholly negate the importance of recognizing gender, and instead, to look primarily to a person’s sex for guidance.This article explores the jurisprudence underpinning lawful and null transgendered marriages from a feminist perspective. Specifically, it describes the history and current state of jurisprudence as it relates to transgendered marriage. This review of the legal landscape identifies the law’s sex-based thresholds for defining gender, which result in the validation or invalidation of a transgendered marriage. Analyzing these thresholds implicates the way in which the law serves to control gender identity and reinforces traditional gender roles in society. This in turn reveals the insidious undercurrent of bias and patriarchy permeating the annals of the justice system as it relates to gender and transgendered identity. Ultimately, this article exposes the woefully inadequate state of jurisprudence today as it relates to transgendered marriage and gender, and posits that this is due in large part to non-lgbptqq identifying, white male dominance.
PubDate: Tue, 14 Apr 2015 12:30:46 PDT
- We Are Family' Examining Parental Leave and Non-Normative Parents in
the United States
Authors: Samantha Odyniec
Abstract: This article will examine parental leave and the non-normative parent. Parental leave in the United States is currently a hot-button issue. With so much focus on the “Opt-Out” Generation, “Leaning In,” and whether women can in fact “have it all,” the issues faced by parents who are not educated, upper class, and in a heterosexual marriage relationship with the biological father are often ignored in the discussion of how the law is lacking. Instead, the discussion has focused on women at the top echelon of employment. In doing this, a large segment of the population is being completely left out of the efforts to make comprehensive change in parental leave laws.Parental leave, as it currently stands in the United States, is a privilege rather than a right; this must change to account fully for the most comprehensive parental leave possible. In order for the entire nation to progress in this area, the needs of all must be considered in the creation and application of parental leave laws and policies. This paper will examine how laws in the United States are currently structured and applied for all parents. Specifically, it will examine how the Family and Medical Leave Act is insufficient to meet the needs of homosexual parents, single parents, and low-income parents. It will then suggest how the laws can be changed to account for the current gaps.
PubDate: Tue, 14 Apr 2015 12:30:44 PDT
- Fifty Shades of Oppression: Sadomasochism, Feminism, and the Law
Authors: Jacqueline Horn
Abstract: Can sadomasochism (S/M) be reconciled with feminism' When pain is pleasure and humiliation is empowerment, how should the law respond' This article investigates S/M under the legal gaze, particularly the manner in which legal theory and legal practice have constructed female masochism. This article argues that the jurisprudence of S/M is formed by the perception of the “sexual other” as a threat to the normative sexual behavior the law has worked tirelessly to maintain. Historically, society – and by extension the law – has been intolerant of behavior that transgresses sexual norms. As Laura A. Rosenbury and Jennifer E. Rothman point out, the law “has long attempted to regulate sexual activity by channeling sex into various forms of state-supported intimacy.” 2 Thus, the legal response has been to categorize masochists as “victims” and sadists as “criminals.” This approach is misguided because it fails to account for the possibility of a pleasurable, healthy sexual experience through S/M.The law has a role to protect women from violence. However, consensual and mutually pleasurable sexual practices should not be subject to arbitrary and oppressive value judgments. By denying the opportunity of empowerment through S/M, what does the law “say” about acceptable female sexuality' This article suggests that the current legal regulation of S/M perpetuates an idealized female sexuality, which does little to improve the female condition. The law cannot, and should not, determine what sex is acceptable. Ultimately, the law should endeavor to promote healthy, consensual, pleasurable sexual practices, or at the very least should not inhibit them. As it currently stands, the jurisprudence of S/M amounts to nothing more than oppressive and patriarchal gender regulation.In Part I, this article analyzes common definitions of S/M, comparing practitioners’ definitions with psychological ones. Readers must consider the definition that the law has accepted, and the reason that this definition may be detrimental for women. In Part II, the article discusses societal acceptance of S/M through an analysis of prominent sexual theorists and pop culture, wherein the article will reveal that society has been unwilling to welcome S/M as a viable sexual practice. This article argues that because S/M threatens the puritanical sexual hierarchy that directly oppresses women, society has worked to tame it. When S/M has been accepted, it has been in limited circumstances: heterosexual, monogamous, marital, and male-dominant/female- submissive. This restricted acceptance of S/M supports and furthers an unrealistic and normative female sexuality.In Part III, this article investigates female sexual submission through the lens of important feminist legal theorists: Catherine MacKinnon, Katherine Franke, and Robin West. Here, the article intends to reach a meaningful conclusion as to the proper role of feminist legal theory concerning S/M. What values should feminist legal theorists promote' This article argues that while female masochism may have undesirable roots and influences, it must be embraced. Feminist legal theory must work to provide grounds for a woman to be simultaneously sexual and empowered. In Part IV, this article analyzes and critique Cheryl Hanna’s assertion that “sex is not a sport.” Hanna maintains that the law should not permit consent as a defense in criminal cases where S/M is concerned. However, this author disagrees, and will provide an alternative approach in Part V. This article intends to provide a solution that protects women from violence, while promoting alternative sexual behaviors that are healthy and pleasurable.
PubDate: Tue, 14 Apr 2015 12:30:43 PDT
- Immutability of Identity, Title VII, and the ADA Amendment Act: How Being
"Regarded As" Transgender Could Affect Employment Discrimination
Authors: Maria Pahl
PubDate: Wed, 25 Feb 2015 07:00:20 PST
- Criminalizing Victims: The Importance of Ending Felony Prostitution in
Authors: Rachel Johnson
PubDate: Wed, 25 Feb 2015 07:00:19 PST
- From Meritor to the New Millenium - Adapting Sexual Harassment Legal
Standards for the Internet Age
Authors: Jill Wesley
PubDate: Wed, 25 Feb 2015 07:00:18 PST
- Responsible Pornography: Respecting Women's Interests and Rights in
Authors: Kelly Cronin
PubDate: Wed, 25 Feb 2015 06:35:17 PST
- Attempting to Slice Out Male Circumcision
Authors: Brandon Baseman
PubDate: Wed, 25 Feb 2015 06:35:16 PST
- Game Plan to Fight Human Trafficking: Lessons from Super Bowl XLVI
Authors: Abigail Lawlis Kuzma
PubDate: Wed, 25 Feb 2015 06:35:15 PST