Increasingly, courts in the United States and Canada are called to rule on parental disputes about the gender identity and expression of children. Often in the background of a custody dispute, courts are faced with the task of deciding what parental arrangement is better to support the gender identity/expression journey of a young child. In the classic case, one parent encourages the gender exploration of the child and the other objects, often also accusing the supportive parent of putting ideas about gender nonconformity into the child’s head. This new terrain raises serious questions about gender, equity, and the best interests of the child. And, of course, both in the U.S. and Canada, cases are often accompanied by wide media coverage and politics that try to drag this situation into the culture wars.
To the rescue arrive two excellent and original articles, one from Canada, Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts, and the second from the U.S, Exploring Identity. They are not the same, but they tackle similar questions. Each is valuable, and together they provide rich and largely missing context that can guide courts, litigants, and policymakers when they navigate these relatively new and complex cases. They provide clear analyses of relevant terminology, science, doctrine, and caselaw, and each makes specific policy recommendations.
Both articles deal with questions of parenting disputes (typically custody) regarding children’s gender identity and expression. Houston’s article, dealing with Canadian cases, covers children of all ages and treats the group as “transgender and gender-nonconforming.” George’s article covers U.S. law and focuses exclusively on preadolescent children, whom she calls “gender expansive” children—a term referring to trans, nonbinary, and “children exploring non-traditional gender identities.” The reason both articles insist on using complex terminology rather than simply “trans kids” is to avoid labeling preadolescent children in ways that narrow their options of identification and expression. The authors acknowledge that some children will eventually transition, some will identify as abinary, some will identify as cisgender LGBQ individuals, or none of these. Indeed, professional medical literature has long recognized that preadolescence children with gender-atypical behavior do not necessarily end up transitioning. A highly-criticized group of studies named this phenomenon “desistance” (because children “desist” with the atypical gender behavior later in life). These studies claim that “over 80% of transgender children will come to identify as cisgender once they reach adolescence or early adulthood.” Recent scholarship provides robust critique of “desistance” theory. Literature criticizes this (oft-used) terminology of “desistance,” noting that it is rooted in the field of criminology and that the use of the term reflects on the gender-binary premise of the studies. Further, as George and Houston elucidate, the studies that support the “desistance” theory used highly questionable methodology. At the same time, they both acknowledge that the gender expression and identity of preadolescent children are not static and that future gender identity is difficult to predict.
The fluidity of gender expression and identity in preadolescent children leads both authors to make a similar claim: when courts try to determine “Is that child really trans?,” they are asking the wrong question. Instead, both articles advocate that courts enable preadolescent children to explore their gender identity. In particular, Houston argues that courts should give significant weight to the views that children in these cases express. Allowing individuals to define and develop their own identity is a central tenet of gender-affirming care model (the goal of gender-affirmative treatment is to relieve distress and anxiety regrading gender identification and expression). Hence, George contends that parental support for exploration of gender identity is in the child’s best interest, and Houston asserts that judges need to presume that supporting a child’s identification and expression of gender is in the child’s best interest.
Both articles lay out clearly, helpfully, and critically the research about the formation of gender identity among children, and use it to clarify the legal terrain. The two articles also document how courts often rely on medical experts’ perspectives in adjudicating these cases. George puts reliance on scientific data in context by presenting historical patterns in which courts have eventually reframed their responses based on developments in the science, such as in the case of research on LGBTQ+ parenthood. Houston, while noting that experts can be helpful, argues that their testimony should be taken with caution, as the area is fraught with politics. Both also analyze a large number of cases, elucidating the main outcomes of these cases, their (sometimes flawed) reasoning, and their general trends.
Each article also makes varied contributions. Houston delves into the decision to transition, including medical interventions. George examines how courts have dealt with questions of identity in related areas: children’s sexual orientation, race, and religion. This latter analysis puts what seems like a novel and difficult dilemma for courts in perspective, provides some unexpected doctrinal insights, and shows the consistency in courts’ approaches that seek to enable children to explore their identity. Finally, one of George’s main recommendations is to enact statutes that confirm that gender exploration is in the best interest of the child. It is interesting to note that Ontario, according to Houston, has amended its legislation pertaining to child protection to clarify that the best interests of the child includes consideration of “gender identity and gender expression.”
Overall, both articles provide a great service to the legal community in their rigorous analyses of these types of cases, which have become common in the U.S. and Canada. Both articles should be commended, especially for the critical and respectful way in which they deal with an area that is politicized and that, as well, touches upon people’s most personal issues. Their doctrinal and prescriptive insights will be helpful to many, and the clear way in which medical knowledge is presented is particularly useful. Both could easily fit syllabuses on law and sexuality, and family law. The historical context—and George’s references about how other social movements have engaged with similar contexts—make the terrain richer. Even people who are not working in the fields will likely find these to be good sources to learn about this critical topic.
Editor’s note: for another review of Exploring Identity, please see Aníbal Rosario-Lebrón, On Pointe: The Right of Children to Explore their Gender Identity, JOTWELL (September 13, 2021)
Erez Aloni, Judging Gender
, JOTWELL (September 13, 2021) (reviewing Marie-Amélie George, Exploring Identity
, Marie-Amélie George, Exploring Identity, 54 Fam. L. Q. __ (forthcoming, 2021), available at SSRN.
(2021)); Claire Houston, Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts
, Claire Houston, Respecting and Protecting Transgender and Gender-Nonconforming Children in Family Courts, 33:1 Can. J. Fam. L. 103 (2020).
The murder of George Floyd forced a national conversation and the re-invigoration of our unfinished national racial reconciliation project. In the summer of 2020, as COVID-19 infections spread due to governmental failures, George Floyd was held down, choked, and murdered in Minneapolis, Minnesota by an agent of the state. This murder occurred in front of witnesses like Darnella Frazier, who bravely videotaped it and shared it with the world. Reacting to these events, universities undertook initiatives to address shortcomings in racial equity and to meet demands of students, faculty members, alumni, and community stakeholders. At law schools responsive to these calls, this involved many acts, including embracing the adoption of anti-racism solidarity statements, creating academic centers focused on blackness like the study of race and law, establishing the endowment of scholarships and job opportunities for minority students, and hiring more scholars of color.
Against this backdrop comes a breathtaking, but brief, essay by Professor Carliss Chatman and Professor Najarian Peters. This essay, a skillful example of protest literature, performs the difficult task of truth-telling about legal education as it relates to hiring minority faculty members. It indicts the left-legal liberalism of the legal academy, demonstrating how those who espouse the goal of diversifying the legal profession often fail to make change in terms of their hiring practices. Through storytelling, a classic method and weapon in skillful hands like theirs, the authors paint a picture that is familiar to many individuals who are the “diversity people” on their respective hiring committees. Navigating a landscape of legal professionals who consider themselves liberal and claim not to be racist, the authors reveal how shifting standards, implicit bias, and constant contradictions shape the hiring process at most law schools leading to one ultimate result: law schools fail to hire faculty members of color, particularly Black, Latino, and Indigenous individuals, even when they are highly qualified for these roles.
Although the number of minority faculty has increased, Professor Chatman and Professor Peters argue that not enough has changed. Law school faculties remain heavily vested in the status quo and the faculty remains overwhelmingly white and male – particularly in the most highly compensated prestigious full-time tenure track roles. This issue is not unique to law schools. The upper echelon of the legal profession – those who make law, interpret it, benefit most lucratively from it, and teach it – remains majority white and majority male. And while the profession has gotten more inclusive, and has diversified some along lines of race and gender, the overwhelming whiteness and maleness of the profession and legal academia has remained sticky. Professor Chatman and Professor Peters attempt to unstick this stickiness with honesty about the process. The essay excavates the dysfunctional way in which faculty hiring committees and law school communities are moved to inaction and paralysis in terms of diversifying the faculty ranks. The authors also urge institutions to protect their students and warn the students not to invest too heavily in the institutional work of anti-racism.
Professor Chatman and Professor Peters are not the first to highlight the failure of the legal academy to diversify its faculty and move beyond tokenism. Powerful progressive voices like Richard Chused and Critical Race Theorists like Richard Delgado were highlighting the failure to diversify and democratize even in the 1980’s. In 1988, Professor Chused found that, “minority professors in general, and black professors in particular, tend to be tokens if they are present at all; that very few majority-run schools have significant numbers of minority teachers; and that minority teachers leave their schools at higher rates than their white colleagues.” Critical race theory scholars have addressed the failure of law schools to diversify with activism as well. One of the most famous examples of this resulted in the protest resignation of Professor Derrick Bell at Harvard Law School when the institution failed to hire a Black woman.
Professor Chatman and Professor Peters contribute to this literature in a refreshing way by highlighting the performative nature of law school hiring practices and the theater enacted by the conversations. The repetition of this theater, maddening to those on the ground and committed to change, is captured perfectly in their work. One feels as if she is sitting in the room, around the table, being told–once again– that qualified minority candidates are simply “not interested” in employment at the institution. Earnestly, everyone sighs. Everyone nods. Everyone wistfully declares that they wish the pool were more diverse. Everyone promises to do better and try harder – next time. There are often no negative consequences for individuals in the institution who stood in the way. And when some small institutional act of acquiescence has occurred, if there is some success, then those who midwifed the change are not given credit. They are also told they should be happy. Are you happy now? Perhaps we can get back to some real hiring, some normal hiring, they say. It is not clear what real hiring or normal hiring would be. I suspect, and I think the authors would agree, that such hiring would not be focused on antiracism or on the inclusion of diverse candidates. So no, we are not happy yet.
The righteous tone in Professor Chatman and Professor Peter’s essay engages readers throughout the piece. In a world where legal scholarship can be stodgy, boring, and mealy-mouthed, the authors boldly stake claims and take chances. The aesthetic of the essay is the praxis of Black Radicalism and Black feminist theory. The initial invocation of the voices of the ancestors that came before, like Ida B. Wells, is followed by the authors’ deployment of the narrative that undergirds the interventions of critical race theory. Professor Chatman and Professor Peters tell a story that has been told in private whispers, rehearsed in the conversations of the past that are present and have become prescient in this moment. Throughout, they offer a revelatory contribution that seems to operate on what Robin D. Kelley calls “blues time.” For Kelley, “[b]lues time eschews any reassurance that the path to liberation is preordained. Blues time is flexible and improvisatory . . . simultaneously in the moment, the past, the future, and the timeless space of the imagination.”
Constructively, performativity and theater, even in their most conservative forms, entail ethical possibilities of becoming and recognition that may lead toward emancipation and contribute to change. This performativity and theater entail the creation of maybes and possibilities that may remain unrealized even for those doing the performing. The maybes and possibilities of performativity have been demonstrated by the body of literature in queer theory pioneered by scholars like Judith Butler and the lived experiences of Black queer people who created ballroom culture. The possibility that performative acts, which may seem empty or even contradictory, lead to increased recognition has long been understood to shift the intelligibility of what could be by challenging the intelligibility of what is. This means that what might start as performance has the potential, even slightly, to re-imagine the realm of the real and push against the boundaries of what is toward a liberatory possibility of what may become.
Perhaps though, this is just the hopeful dream of an ex-musical theater kid and queer theory stan who found worlds of possibilities in drag balls in the latter moments of the twentieth century. As Angela Harris has noted, although counterhegemonic performance can create the possibilities to see the operation of power and ideology, “’[p]erformance’ is a tricky word in a society that reveres ‘choice.’” And as Professor Chatman and Professor Peters illustrate–bluntly–the road to liberation and change through performance and theater, however, is treacherous and uncertain. Further, it is marked by the potential for capture and failure.
This essay by Professor Chatman and Professor Peters is a much-needed uncompromising and unflinching look at the status quo in legal education. It also beckons others, with the privilege and power to do so, to join the struggle. Professor Chatman and Professor Peters speak in a voice that the legal academy should heed.
Recently, researchers and advocates have brought to light the extra financial costs of living with disabilities, or as some have called it the “crip tax.” They showcase the expenditures disabled people make because they have a disability, which are usually invested in necessities such as assistive technology, household accessibility renovation, service animal maintenance, or the purchase of special food due to dietary restrictions. These expenses are particularly onerous as this population has historically faced major barriers to entering and staying in the workforce, in addition to earning lower wages on average compared to their non-disabled peers.
In her excellent new article, Disability Admin: The Invisible Costs of Being Disabled, Liz Emens makes an important contribution to this discourse about the “taxes” imposed on individuals with disabilities. Emens exposes and conceptualizes other significant, yet non-financial, costs imposed on individuals with disabilities as they move through the non-disabled world. These costs are borne out of the incredible amount of time and mental energy people with disabilities exert on a daily basis while engaging with mundane tasks (like repeatedly explaining their needs to strangers, filling endless amount of forms, or constantly rearranging their routes so that they would be accessible), red tape, and the advocacy needed to exercise their rights. This is a type of labor which Emens calls “disability admin,” and is an extension of her work on “life admin.”
Weaving together original interview data, classic and contemporary texts in disability studies, case law, and even a description of an art installation, Emens richly describes the admin work disabled people are forced to engage in. She divides this labor into three categories: medical admin, benefit admin, and anti-discrimination admin.
While all of us experience the pitfalls of the managed-care health system to some degree, with its constant burden of navigating referrals, appointments, and documentation, such requirements have a disproportionate impact on many disabled individuals, who are legally required to constantly prove their status. While encounters with the healthcare system are also commonplace among non-disabled people, other experiences that Emens describes, such as applying for public benefits or being dependent on an inaccessible public transportation system, may be less familiar to non-disabled persons. Emens’s piece makes a persuasive argument that, when judges examine the “reasonableness” of disability accommodations in the workplace and in educational settings using a cost-benefit analysis or when they discuss whether a federally funded service is “readily accessible,” disability admin must be taken into account.
The internal conflict of when, how, and what exactly should be asked for when exercising disability rights, as well as the role law plays in disincentivizing potential claimants, are also issues that Emens brings to light in the piece. Reminiscent of the classic Naming Blaming Claiming framework on the emergence of legal claims (put forward by William Felstiner, Richard Abel, and Austin Sarat), Emens shows us that it is this constant need to advocate for oneself that makes up so much of disability admin.
In a sense, Emens is doing for disability studies what psychologists like Virginia Brooks and Ilan Meyer did for the LGBTQ community when they coined the term “minority stress” in the 1980s. Minority stress is the emotional tax experienced by minority group members that arises from daily conflicts they experience with the social environment. It includes the symbolic interactions that signal to the individual that he or she is different and needs to work harder to fit in, which have a documented cumulative effect on mental health and well-being. As Emens shows, a similar process occurs for people with disabilities who endeavor to utilize legal rights and benefits, except that, for them, it is an endless struggle not only against societal attitudes but against built environment and infrastructure. In a world which was not built with their needs in mind, it is no wonder that such an uphill battle causes many disabled persons to experience “advocacy fatigue.”
Emens’s Article is also in conversation with two other exciting forthcoming pieces on the evolving nature of the doctrine around disability accommodations by Kathrine Macfarlane and Shirley Lin. Taken together these three papers exemplify a relatively new strand of disability law literature, one that not only theorizes concepts such as the social model and analyzes court cases, but which makes a point of centering disabled people’s lived experiences.
The joy Emens must have felt in combining two of her strands of research in the last 15 years, disability rights law and the effects and legal manifestation of life admin, spills off every page. This joy is infectious and makes for an enjoyable and fascinating read. Emens’ piece has ramifications beyond the courts. Following a year in which professors encountered many more requests for disability accommodations and modifications due to the COVID-19 pandemic, lessons from the piece may easily be applicable to the realm of higher education generally and to legal academia in particular. Exposure to the invisible labor and the toll disability admin takes on students receiving accommodations should lead professors to develop a better understanding of the limitations and promises of disability rights law. In turn, one cannot help but hope that such knowledge will help foster trusting student-professor relationships and inclusive approaches moving forward.
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For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Equality section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.
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In Settler Colonialism, Policing and Racial Terror: The Police Shooting of Loreal Tsingine Sherene Razack gives voice to the settler colonial violence perpetrated against Loreal Tsingine, a 27-year-old Navajo women who was shot and killed by Austin Shipley. Shipley, a white male police officer, claimed he was trying to apprehend her for alleged shoplifting. The article, which is brilliantly and compellingly written (as is typical of all of Professor Razack’s work) makes several claims. Most centrally, however, she asserts that racial terror – a violence done at both structural and individual levels – is at the very heart of the settler colonial project. In the North American context, the aim of the settler colonial project is the erasure, or in Razack’s words the annihilation, of Indigenous peoples in the interests of white settlement and prosperity. It is a state sponsored and centuries-old endeavour manifested through, for example, land and resource dispossession, cultural genocide, legal discrimination, the carceral state, and the destruction of the social, physical and political infrastructures that serve Indigenous peoples health and safety. Razack begins her analysis by reminding us that settler colonialism is an ongoing project, one that requires the continual imposition of racial terror.
Racial terror, Razack explains, maintains white supremacy and protects white entitlement, but also reassures today’s white settler subject that the imagined threat of racial otherness is contained. Settler colonialism is premised on the extraction not only of resources and lands but also through “everyday extractive relationships” that consolidate white superiority, among other things, by violating and annihilating Indigenous bodies. (P. 2.) Through a detailed excavation of the psychic underpinnings of the settler state, Razack reveals the way in which white identity is constituted through the continual reification of Indigenous peoples as a threat to ‘the community’. She writes, “[p]olice shootings of Indigenous people and the legal response to police use of force (along with everyday settler violence) are a part of the racial terror that is a central part of settler colonialism.” (P. 1.)
This anti-Indigenous violence constructs not only white settler subjectivity but also state institutions – like the police:
If the extractive relations that are the basis of settler colonialism require and produce white subjects for whom Indigenous lands and bodies are the resource for white identity, policing is one site where white men and women (as well as those aspiring to whiteness), can enact and consolidate racial hierarchy on behalf of the colonial state with impunity. (P. 3.)
Razack weaves these insights into her dissection of white police officer Austin Shipley’s account of what occurred in the killing of Tsingine. Shipley suggested he was trying to arrest her for alleged shoplifting when she came at him with “a pair of inch-long medical scissors.” (P.2.) He outweighed her by 100 pounds. Shipley shot her to death. He argued that this was self-defence – that the 100 pound Tsingine with her pair of sowing scissors caused him to fear for his safety. Razack suggests that we, in fact, accept Shipley’s assertion that he feared this Indigenous woman. This “fear of Indians” and the imagined threat they pose, she argues, supports a “white colonial masculinity” that imposes dominance in an effort to confirm settler subjectivity. (P. 3.)
The white settler project, Razack suggests, requires this violence both at an individual level (through the violence perpetrated against Indigenous bodies) and at a societal level (through the dispossession of Indigenous lands and resources). The central function of the police is to protect this white property regime and the lethal violence that they deploy to do so is, if not sanctioned by law, certainly not censored. She reveals the way in which the exoneration of Shipley, who faced no legal consequences as a result of the killing, relies on a post-mortem construction of Tsingine as an unstoppable threat – a lethal “animal.” (P. 2.) In killing Tsingine, Shipley was acting in accordance with the role of the police to protect white, settler subjects and their property from the perceived “animalistic threat” posed by the Indigenous other. (P. 18.) Razack argues that this type of police use of force, and the (lack of) legal response to it, exemplify the racial terror necessary to facilitate settler colonialism. This violence against Indigenous people “lies just beneath the surface of everyday settler life, and importantly, flows through institutions such as policing, embedding itself in everyday professional routines.” (P. 2.)
And so Loreal Tsingine is dead – killed with impunity.
What I have offered here is a brief description of the theoretical framework that Razack brings to bear on one particular incident of racial terror. There is a richness to this piece, both in detail and analysis, that I have not fully captured in this review. Part of what makes Razack’s work so extraordinarily insightful and compelling is her ability to integrate the minutiae and individual detail of white settler violence into her analysis of the structural perpetuation of racial terror, of the ongoing colonial project. In Settler Colonialism, Policing and Racial Terror: The Police Shooting of Loreal Tsingine, Sherene Razack demonstrates the deeply embedded, constitutive nature of police violence against Indigenous peoples. It is an exceptionally well-done excavation of, and illumination of, the way in which white settler society maintains power and hierarchy through violence.
Despite the dominance of COVID-19 in our media feeds this past year, we still do not hear much about the anthropogenic origins of zoonotic diseases or the anthropocentrism that frames anthropogenic activity. We hear even less about the corresponding need to combat anthropocentrism, the monumental roadblocks legal systems erect in this regard, and how legal systems can and should adopt anti-anthropocentric perspectives in order to make inroads against an array of inequality-producing social phenomena. Going against this grain, and exacting much-needed pressure against Western legal orders’ exclusionary anthropocentric worldview of “nature” as property, is Alyse Bertenthal’s Standing Up for Trees: Rethinking Representation in a Multispecies Context.
In this elegantly-written article—that reads more like a cogent literary meditation than standard law review writing itself—Bertenthal casts a critical lens on the anthropocentrism of Western legal cultures and, in particular, the legal devaluation of trees in the American landscape (figuratively and literally). But she also challenges us further by asking us to interrogate the human-made legal constructs that are meant to rectify the subordinate position of “nonhuman nature” (P. 356)—such as the extension of legal personhood—for their residual anthropocentric exclusions.
With Christopher Stone’s trailblazing 1972 article Do Trees Have Standing? as a point of departure for her analysis, Bertenthal provides two signal contributions in moving us toward a multispecies understanding of who law is for and the power asymmetries it should address. First, she provides a fascinating historical overview of the specific ways trees have populated American case law, including the last time the United States Supreme Court rendered an opinion about the value of a tree (almost a century ago in 1928).
Second, she goes beyond standing debates about whether trees should move from legal object to legal subject to ask a newer set of questions: how can the perspectives or voices of trees (and, by extension, other nonhumans) enter spaces of law without succumbing to its anthropocentric vortex? How can law hear “tree voice” in a way that avoids human contamination and containment, however benevolently intended? Can we fashion a different relationship with trees and other “nature” beings so that these nonhumans do not need to “rely upon human forms in order to be heard in distinctly human forums?” (P. 356.) Can we eschew the “centrality of humans as the standard and representative for nonhuman nature” (P. 356)?
Bertenthal innovatively uses literature to spotlight these questions and illuminate some answers, suggesting that the impoverished stories law tells us about trees and what they are worth can profit from the better stories available in literary imaginings of trees “where trees can and do exist as more than human property or prize.” (P. 357.) Bertenthal opens her recourse to literature for “good stories” about trees with a section entitled “Tree Space.” She first recalls how literature has primed us to think of trees as old and encouraged us to mark their longevity, as well as covet their unhurried and gentle pace. This is a conceptualization some have called “tree time” that stands “as an implicit critique and natural contrast to human time.” (P. 357.)
Bertenthal then suggests that law, in contrast to literature, harnesses the endurance of trees not to romanticize or dignify them, but to establish private ownership. She takes us through a brief but instructive historical account of how trees are used to delineate the physical dimensions of real property. She discusses the metes and bounds systems and other 19thcentury legal initiatives that treat trees, as Bertenthal pithily puts it, “as markers of space, not time.” (P. 359.) Bertenthal also refers to the voluminous case law focused on neighbour disputes over who owns trees in more contemporary times. While owners may care enough about trees to sue their neighbours, these cases, Bertenthal argues, are much more about social relations gone awry than any challenge to trees’ status as property (P. 361.) This type of socio-legal excavation about nonhuman animals—let alone trees—is rare in legal scholarship.
The latter parts of the paper are where Bertenthal explores a corrective for the “property-obsessed narrative of trees,” something she is quick to stress must be different from conservationist goals that implore us to protect trees for future human generations. She instructively asks the question most of us don’t: “When trees speak in their own voice, will they really be so concerned with us, and with what happens to us?” (P. 362.)
She acknowledges that there are cases where state courts have been able to bring into view trees’ “intrinsic value.” Bertenthal discusses another dispute between neighbours where one party resisted terminating the tree’s life due to the personal value the tree held for him, a value that the court was able to legitimate in its damage award. Bertenthal appropriately reads such cases as expanding law’s surface understandings of trees but not the foundational legal ordering that classifies trees as property under which trees are valuable insofar as humans value them. The intrinsic value cases are compared to The Giving Tree by well-known children’s author Shel Silverstein in which a tree ostensibly gifts to a little boy whatever he needs as he ages, including the tree’s life.
For a non-anthropocentric appraisal of tree value, Bertenthal turns first to the Lorax, a character from the eponymously-named book of another famous children’s book author, Dr. Seuss. A dominant understanding of the tale reads the Lorax as an environmental guardian of trees, caring empathically for them and giving voice to their needs. Although the trees in The Lorax are no longer valued simply for how they benefit humans, Bertenthal suggests that a continuing problem with the guardianship model as a corrective for law’s propertization of trees is the power asymmetry it embeds, however well-intentioned. Bertenthal finds a recent interpretation of the Lorax character as actually forming part of the trees’ ecological system a more hopeful rendering of the representation she is advocating for. Her vision is a form of legal representation where tree (and other nonhuman) voices can be less mediated by humans who wish to speak for them but do not share their vulnerability. Bertenthal also calls for a form of legal representation that acknowledges that trees do not speak with a singular voice and that a lot will be lost in translation and will remain unknown to humans even when we care deeply and wish to protect trees.
It is in a courtroom scene in Richard Powers’ tree-centered novel, Overstory, that Bertenthal finds a model for how the law can listen to and learn about trees in a different register. In Overstory, a botanist is asked to be an expert witness to convince a judge to rule against a logging company. She tells the judge about who trees are through what trees and forests can do, basically convincing him as to their need to be protected from death. But she also shares that, as a human, even one who is an “expert” in trees, she can only know so much and that there is much more that trees and forests have to impart if humans are to be able to understand them.
Bertenthal offers up the botanist’s testimony in this novel as an example of how humans who care about the lives and flourishing of trees (and presumably other nonhumans) can speak more ethically about rather than for trees. This is because the testimony envisions legal representation as partial translation, a translation in which we acknowledge the limits of being human. Bertenthal reads the botanist as not speaking for the trees, but for herself. Her advocacy and contribution in that moment is to allow the love and empathy that she has for trees help the legal decision-maker see “tree being,” rather than merely seeing trees as property. The botanist’s advocacy thus illuminates the injustice in our normal relations with trees.
I recommend Bertenthal’s piece not so much for her specific prescriptions about representing trees or other nonhumans, but for the overall non-anthropocentric imprint her fluidly-crafted argument leaves on its reader. One might come away unswayed that the guardianship model or the act of speaking for is as flawed as Bertenthal argues. But one will not come away unaffected by the literary analysis or the need to think more deeply about the flaws of legal anthropocentrism and the violence it enacts on trees and other beings devalued as “nature” and subordinated as “property.” Bertenthal reminds us that questions about legal standing for other species will require that we “stand up for” (but not speak for) them and will also invariably require us to “stand aside.” (P. 369.) The article presses the point that we must write a different and better legal narrative or story for other species, one where humans are no longer the central characters.
Property Law instructors seeking to infuse their teachings with more critical content should teach Bertenthal’s article. We know that teaching critical content in law school about inequality and injustice, particularly to those anxious to learn the law and not critique it, can be challenging. This is so even when we do not ask students to reconsider who has formal legal subjectivity in law and who doesn’t. Imagine what happens when we do ask this question.
In my first six years of teaching, I taught Property Law to 1Ls. I always raised the normative question about what/who is property. Most years, I included a module introducing students to animal law scholarship promoting legal personhood for animals. These classes were daunting, eliciting the denial and overall defensiveness that often ensues when adults are asked to confront the subjectivity of the living, sentient subjects many of us eat or whose milk or eggs we appropriate. One year, prefacing a module about the physical dimensions of land ownership, I also raised the question about whether trees should be property, thinking this would go over better. I put Christopher Stone’s classic article, Should Trees Have Standing? in the readings and read Shel Silverstein’s iconic children’s book, The Giving Tree, to the class, both of which are sources Bertenthal mentions. Whether my adult students felt infantilized by the latter or didn’t love the classic children’s book as much as I did (for what I perceived as its objection to a sacrificial life for a tree), I am not sure. But this intervention also fell flat.
If I were to teach Property again, I would include Bertenthal’s article to do the heavy critical lifting. Her analysis is peppered with literary references to possible childhood favourites that students can relate to, and it also has an inviting, literary quality itself. Without compromising its hard-hitting message against law’s anthropocentric exclusions, it has the potential to bring along even the most ardent proponents of human exceptionalism to consider the claims of nonhumans and the urgent need for law to respond to multispecies realities and complexities.
Recasting the Vote: How Women of Color Transformed the Suffrage Movement is an essential read for anyone interested in women’s history, the history of voting rights in the United States, Indigenous history, or the history of other under-represented groups. Cathleen D. Cahill brings to light the little-known contributions of Native, African-American, Asian, and Latina women to the struggle for voting rights in America. Cahill combed multitudinous sources to paint robust portraits of these women, including Native activists Laura Cornelius Kellogg, Marie Louise Bottineau Baldwin, and Zitkala-Ša, African-American voting rights advocate Carrie Williams Clifford, Chinese-born activist Mabel Lee, and Latina activist Nina Otero-Warren, among others.
The book rightfully complicates the notion of women’s suffrage, revealing that a singular focus on women’s suffrage both obscures the larger struggles that these women were engaged in to secure the voting rights of all members of their communities and elides the contributions of these women to the suffrage movement. As Cahill explains, “[t]he suffrage histories of women of color bridge 1920, so to see that year as an end point leads us to tell a story that inevitably ignores them and truncates our understanding.” (P. 205.) Another invaluable aspect of this book is that Cahill refuses to shy away from the complexities of the important history she is unveiling. Thus, as readers, we are forced to reckon with the fact Native and Latina activists, for instance, sometimes drew distinctions between themselves and African-Americans to demonstrate the worthiness of their own communities for voting rights. More broadly, we are faced with the shameful history of exclusion within the women’s suffrage movement. White suffrage parade organizers, for instance, tried to relegate Ida B. Wells (then going by Mrs. Wells-Barnett) to the portion of the 1913 Washington D.C. suffrage parade reserved for African-Americans, rather than allowing her to march with the Illinois delegation as planned. As a consequence, she had to jump into the parade after it had already started in order to march with her fellow Illinois citizens. (P. 104.)
It is tempting to the think of the history of voting rights, like other histories, in linear terms, with African-American males getting the vote in 1870 upon the ratification of the Fifteenth Amendment; white, African-American, and Latina women receiving the right to vote in 1919 with the ratification of the Nineteenth Amendment; and Native American men and women securing the right to vote via statute in 1924 (although many Native persons had obtained the right to vote prior to that).
Recasting the Vote shows that this progression was nowhere near so simple. Cahill, for example, reminds us that, post-1920, widespread lynching of African-Americans continued to be utilized to dissuade African-Americans from voting and that, as a consequence, activists like Carrie Williams Clifford organized campaigns for anti-lynching legislation. (P. 226.) Racist whites also prevented Native Americans from voting even after the Indian Citizenship Act was passed, with “States with large Native populations borrow[ing] heavily from . . . southern examples while also using Native people’s unique relationship to the federal government to keep them from voting.” (P. 261.) And although activists like Mabel Ping-Hua Lee fought for women’s suffrage in the United States, under the Chinese Exclusion Act, “the Chinese were the only people in the world whom the United States restricted due to their nationality and made ineligible for naturalized citizenship.” (P. 149.) Thus, until the repeal of the Chinese Exclusion Act in 1943, Chinese-born women could not become naturalized citizens and could not vote irrespective of the Nineteenth Amendment.
Cahill thus renders her history of suffragists of color in all of its undeniable complexity. As such, Recasting the Vote is bound to be an indispensable resource on the subject for decades to come.
As a tribal law and federal Indian law scholar, I found I was most drawn to Cahill’s portraits of Native activists who participated in the suffrage movement. Cahill’s work introduced me to Marie Louise Bottineau Baldwin and Laura Cornelius Kellogg and greatly enriched my understanding of the life of writer Zitkala-Ša, all of whom were significantly involved in the suffrage movement.
A member of the Turtle Mountain Chippewa Tribe who initially supported her attorney father in his protracted attempt to recover fair compensation for the federal government’s taking of the Turtle Mountain Chippewa’s lands, Bottineau Baldwin went on to become the first Native female attorney in the United States, after graduating from Washington College of Law (now part of American University). Before, during, and after law school, she served in the United States Office of Indian Affairs, and she also served as one of the founders and executive committee members of the Society of American Indians. In her work for Native suffrage, Bottineau Baldwin, like Kellogg and Zitkala-Ša, fought against the idea, so prevalent in mainstream society at the time, that United States citizenship for Native Americans was diametrically opposed to tribal sovereignty, so that an individual Indigenous person would have to choose between the two types of citizenship and rights. Instead, Bottineau Baldwin argued for a layered understanding of citizenship in which participation in tribal affairs and tribal rights recognized under treaties with the federal government, including communal land rights, remained important.
Oneida author Laura Cornelius Kellogg similarly advocated for a layered notion of citizenship in which American Indians’ tribal identity would remain important. She was also employed for a time in the Indian Service and similarly served on the Executive Board of the Society of American Indians. (Pp. 90-91.) She linked United States constitutional ideals to a Haudenosaunnee origin, publishing her first book, Our Democracy and the American Indian: A Comprehensive Presentation of the Indian Situation as It is Today, in 1920. (Pp. 243-245.) The book set forth Kellogg’s groundbreaking economic and political plan, which she called Lolomi. In order to continue to resist assimilation, she argued for Native persons to become organized in a corporate structure through which they could negotiate with the federal government on a more equal basis. (P. 244.)
Finally, I was grateful to learn more from Cahill’s book about Yankton author Zitkala-Ša, whose American name was Gertrude Simmons Bonnin. Active on the Board of the Society of American Indians and a staunch suffrage advocate, Zitkala-Ša, like Bottineau Baldwin and Kellogg, rejected the idea that Native Americans had to choose between tribal rights and rights as United States citizens. (Pp. 189; 247.) Zitkala-Ša fought for the passage of the Indian Citizenship Act and was bitterly disappointed that Native persons in many states continued to be denied the vote after its passage. (Pp. 256; 260.) As one of the investigators of efforts to defraud members of the Five Civilized Tribes of their mineral wealth, Zitkala-Ša also importantly “linked the plundering of Native resources to the violence perpetrated against Native women.” (P. 250.)
As Cahill demonstrates, the canonical women’s suffrage story is a white women’s history, curated very deliberately by Susan B. Anthony, who, along with Matilda Joslyn Gage, wrote the six-volume History of Woman Suffrage, after which Anthony burned the sources and mementos she had solicited from her compatriots in order to write the work. (P. 263.) Readers are extremely lucky that Cahill has assembled these compelling stories of the suffragists of color who do not fit into the tidy white women’s suffrage story and whose voices have been ignored for far too long.
If you’re having one of those days where you feel like change may never come; here’s a fabulous volume for you. This special issue of the Canadian Journal of Law and Society centres the lives of trans people, grapples with daily experiences of exclusion and discrimination, and claims new shared ground for legal change in ways that requires us to de-centre law. It is exciting work.
The collection of articles addresses all manner of cites of legal contest—from employment law to human rights, to education law, to health law. As a collection it is neither rigidly theorized nor staunchly pragmatic. Instead, the articles, many of them authored collaboratively, acknowledge theoretical foundations and legacies, and seek to build from those foundations while still keeping the real lives of trans people in sharp view. And while the collection is ground-breaking as a venue for a collective conversation about trans legal change, it makes no claims to be definitive or comprehensive. Each article both stands independently as a contribution rooted in a specific set of experiences and legal frames and weaves with the other contributions to form a coherent, but of course incomplete, whole. The collection is a conversational moment: it results from an effort to bring together a growing number of Canadian trans scholars, activists, and allies in dialogue and to let things unfold from there.
The collection features 12 distinct contributions, each worth reading in the spirit in which they are offered. As I read through the collection, I imagined the authors were inviting us to pick up a drink of our choosing—a coffee, tea, icy cold water, scotch—and to ready ourselves to learn something, to agree and to disagree, and to find ourselves perhaps hopeful about the future of trans scholarship and trans law.
The transcription of the keynote presentation, a discussion between Dr. Viviane Namaste at Concordia and Dalia Tourki, former Advocate and Public Education at the Centre for Gender Advocacy in Montreal and now a law student, is a genius opening. The pair offer a thoughtful tribute to long-time activist, sex worker, and public intellectual Jamie-Lee Hamilton. They open-heartedly explore the right to be loved, one of many signals that trans legal change is not going to rest on foundations familiar to many traditionally trained lawyers. The challenges of both relying on an often oppressive and conservative institution (like law) and wanting to de-centre the power of those institutes arises poignantly in the dialogue. (Imagine: changing your identity papers can be liberatory and yet not celebratory.) There are lovely stop-downs in washrooms, and with trans youth, on migrants, and contemplating glass ceilings.
The article by Dan Irving and Nathan Hoo particularly captured the spirit of law’s limits. Irving conducted forty-four semi-structured interviews with trans-identified residents of urban areas who were un/deremployed. One of the striking reflections was how complex it was for participants to articulate the reasons for the difficulties they faced in seeking employment. Many could sense that discrimination was at play, but speaking with confidence about the nature of that discrimination and its ramifications was elusive. This is of course why “law wins”. Because our sense of what constitutes discrimination is confined to our sense of what is valid evidence. And what is considered valid evidence is constructed by a system whose survival turns on the inability to “prove” the facts we of course know.
Since many readers of Jotwell find their homes in universities, Leon Laidlaw’s article on trans university students’ access to facilities is a must. Laidlaw surveyed fifth-four trans students and explored their use of washrooms, locker rooms, and student housing on campus. Laidlaw helpfully offers a taxonomy of strategies for “inclusion”—binary inclusion (integrating some space for trans students within the already existing gender binaries), alternative accommodations (offering some distinctive space), and degendering (removing the need for binary facilities altogether). None of these approaches is satisfying. Instead, Laidlaw offers a recommendation for each of washrooms, locker rooms, and accommodation that borrows from the three possible approaches.
Let me offer one final teaser: Jake Pyne’s contribution on “building a person”. Pyne’s article draws an analogy between two behaviour modification programs that share an origin: conversion therapy (which originally aimed to eliminate “feminine” behaviours in male-bodied children) and applied behavioural analysis (ABA) (which aimed to eliminate some behaviours in autistic children). The shared history of these “treatments” is a fascinating read, perhaps familiar to others, but new to me. Pulling together “autism and transgender” offers Pyne with a new lens through which to explore the relative rise in ABA and decline in conversion therapy. The analogy helps Pyne to centre the lives of autistic transgendered children. It also allows for more critical approaches to ABA and to centring the person, what Pyne describes as “a discursive shift from having a condition to being a human.” (P. 358).
A discursive shift of this sort could serve as a frame for the collection. What each of the articles have in common is a profound commitment to honouring being human, and centrally, being a trans person. That work entails exploring understanding law pluralistically and seeing its limits, being grounded in the daily experiences of trans lives, recognizing that the conversation remains partial and ongoing, and acknowledging and grappling with what it means to be centred.
Deborah A. Widiss, Equalizing Parental Leave
, 105 Minn. L. Rev.
__ (forthcoming, 2021), available at SSRN
On Election Day, Colorado voters approved an initiative that makes Colorado the tenth state (including D.C.) in the U.S. to install a state-run paid family and medical leave insurance program. It will provide, among others, at least 12 weeks of paid time for childbirth and adoption, hence extending the entitlement of paid parental leave to Colorado workers who are not covered by the Federal Employee Paid Leave Act. Paid parental leave is increasingly considered to be a crucial measure to advance sex equality by transforming parenthood on double fronts: enabling working mothers to stay employed and paid while caring for children, and encouraging working fathers to provide hands-on infant care. Internationally, many countries have enacted various parental leave policies, which provide either equal amounts of leave to parents regardless of sex or distinct leave policies for mothers or fathers, while mindful of the risk that accommodating working mothers’ need for childcare without engaging working fathers in childcare will likely deteriorate the unequal division of childcare. It follows that a feminist inquiry into parental leave policies typically centers on the issue of which approach best promotes equal parenthood so that mothers do not shoulder the sole responsibility of childcare.
In Equalizing Parental Leave, professor Deborah A. Widiss argues that the above vision of equal parenthood is an incomplete picture. Widiss has examined the efficacy of different paid parental leave policies as an equality-promoting measure from a comparative perspective in a related article, The Hidden Gender of Gender-Neutral Paid Parental Leave: Examining Recently-Enacted Laws in the United States and Australia (reviewed by Naomi R. Cahn on JOTWELL). Equalizing Parental Leave takes a step forward to shed light on the sex inequality of nonmarital families under U.S. parental leave laws. Both federal and state parental leave laws provide the same benefits to mothers and fathers, but they do not benefit all families equally: families with two legally recognized parents are entitled to receive as much as twice the benefits of families with one legally recognized parent, and marital families are more protected than nonmarital families.
Consequently, Widiss discloses an overlooked paradox of parental leave: “every step forward in achieving the gender equality envisioned by these laws—that is, the aspiration that both mothers and fathers will fully utilize their benefits—will widen the gap between families with one custodial parent and families with two”. (P. 2.) To put it another way, laws that intend to correct sex inequality simultaneously cause a different kind of sex inequality: “the particular structure of American leave laws is intended to address sex inequality within (presumptively-different-sex-two-parent) families by encouraging men and women to share caregiving responsibilities. But this policy simultaneously disadvantages single parents. Since women are far more likely than men to have sole custody of a child, a policy that disadvantages single parents functionally disadvantages women.” (P. 40.)
Equalizing Parental Leave grapples with this paradox of equality by providing a diagnosis and a proposal to fix it. Its primary goal is neither to revolutionize the theoretical debate on equality nor to challenge existing constitutional equality doctrines radically. Rather, it incorporates the theoretical inquiry of sex equality with a solid empirical investigation through intersectional and comparative lenses, and seeks a practical solution that can be pursued under the current structure without abandoning the road that has been taken.
Widiss’s careful review of empirical data and reports reveals the intersectional inequality of nonmarital parenthood that begs the need for legislation: unmarried parents are vulnerable workers and families already disadvantaged by their class, race and gender, but they are very unlikely to receive leave benefits from their employers. Her comprehensive and up-to-date survey of US federal and state parental leave laws makes a breakthrough by examining the interaction of leave laws with state family laws that defines parentage and custody rights, which shows how new leave laws categorically disadvantage single parents who are already the disadvantaged. Most significantly, her endeavor to seek wisdom from other countries produces the highlight of this article: the need to promote sex equality both within and between families.
Equalizing Parental Leave shines due to its adoption of a comparative and transnational perspective. As Widiss and other commentators have noticed, the U.S. lags far behind many countries in the world on the protection of new parents by providing paid time off work. The Family and Medical Leave Act provides only unpaid leave, under which “the most vulnerable workers are least likely to be covered.” (P. 21.) Only four of the U.S. state paid leave laws were passed before 2017, and the Federal Employee Paid Leave Act was passed as recently as 2019. This embarrassing fact provides a rare chance for the transnational migration of equality laws to the U.S. Both U.S. federal and state paid leave laws adopt the formal equality approach to provide the same benefits to each parent of a new child. In contrast, countries other than the U.S. generally endorse a substantive equality approach built on the premise that treating women and men the same under the structure of sex inequality will not eliminate inequality at best, and will exacerbate women’s disadvantage at worst.
Widiss identifies the growing trend of encouraging fathers to claim more parental leave by supplementing sex-specific leave with a gender-neutral parental leave available to either parent after materiality or paternity leave. It is an affirmative response to cope with the unfortunate fact that “to the extent that a parental leave can be claimed by women, it typically is claimed by women.” (P. 39.) One of these measures is to reserve a portion of “shared” parental leave for fathers only (known as the “use-it-or-lose-it” provisions), which is proven to have increased fathers’ leave-taking rates. The measure’s effectiveness in transforming fatherhood has led some commentators to propose that the U.S. should follow suit.
Widiss, however, uncovers a fundamental misunderstanding of U.S. laws that guides the above reform proposal. Other countries adopt a shared parental leave policy in which a certain portion of leave time can be transferred from one parent to the other parent. The reserving time for fathers was therefore against a previous baseline in which mothers could use all available leave time. In contrast, American leave laws provide individual and non-transferable benefits and leave for mothers and fathers alike, and there is no shared parental leave. Based on this comparison, Widiss declares that “although gender neutral, the American approach is already more aggressive in encouraging men to take leave than almost any other country’s policy, in that a full half of bonding benefits and leave is “use-it-or-lose-it” leave.” (P. 37.) She pinpoints the opposite problem of the American leave policy—it systematically benefits families conforming to the stereotypical nuclear family, and makes no modification for single families.
The lesson to be learned from other countries’ approaches, Widiss finds, is that they are similarly incapable of treating all families equally, despite their various efforts to transform fatherhood by imposing sex-specific or neutral measures. The American approach disadvantages families with one legally recognized parent. A policy that provides exclusive maternity leave would treat a child with a single mother and a child with married different-sex parents equally, but would disadvantage a child with two fathers. Apparently, various leave policies will result in different levels of benefits being available for different families, hence raising the concerns of discrimination.
However, Widiss cautions that this is not necessarily a problem. The primary focus of parental leave law dictates whether or not it constitutes a violation of equality. If the focus is on a parent’s interest, American law is fair in treating all parents equally (meaning being treated the same when similarly situated). If the focus is on a child’s interest, a family’s interest or public interest, American law is unfair and disadvantages those who need it the most. She also notes that, as a matter of law, variations in how parental leave laws treat families can probably survive a constitutional equality challenge, and are also likely permissible under statutory antidiscrimination laws. As a matter of policy, parental leave laws contribute to the status quo that “nonmarital children, and the adults who care for them— disproportionately poor and working-class women of color—are disadvantaged from the very first months of life.” (P. 40.) Therefore, the first imperative of policy reform is to support nonmarital families in which the parent bears the primary responsibility for both breadwinning and caregiving.
Widiss’s paid leave law reform proposal to advance both sex- and family-based equality is a modest one. It recognizes the remarkable effects that universal childcare and a high-income replacement rate will bring about, but chooses a different route that requires minimal additional resources, that is, permitting sole custodians to receive extended benefits with the possibility of a transfer to a broader range of familial caretakers. (P. 41.) The proposal is premised on the lessons learned at home and abroad. The domestic experience of leave law policy seems to have lived up to its goal of encouraging fathers to claim leave and shifting gender norms within two-parent (different-sex) families. Other countries’ experience suggests that providing individual rights to each parent on a use-it-or-lose-it basis is the most effective way to achieve policy goals. She is, therefore, reluctant to move toward a wholly family-based leave approach, which will likely compromise the progress achieved by the existing structure.
Keeping the individual-based policy in place, her proposal would allow single parents to receive extended benefits. This gender-neutral policy will likely produce a positive, disparate impact on women, because they are more often the sole custodians. Using other countries’ transferable leave laws as a model, her proposal would allow the option of transferring a portion of benefits to an extended list of familial caregivers, including unmarried fathers, grandparents, and cohabitating partners. A jurisdiction can decide the design of transfer options and the range of benefit extension as it sees fit to mitigate existing inequality. The suggested changes, Widiss argues, can be easily implemented to existing leave laws, because they do not require the creation of new legal categories. Furthermore, it would not unduly burden employers, because the costs are already spread across the tax base. It is indeed a small but necessary step to advance equality for all.
As a newcomer to the club of countries offering paid parental leave, the U.S. still needs more states to enact legislation so that paid parental leave will be available nationwide. But the inequality of nonmarital families begs for more changes. Equalizing Parental Leave engages with the equality question of paid parental leave on both empirical and conceptual levels. It exhibits the crucial role of solid empirical research to substantiate an inquiry into inequality. It demonstrates how a comparative and transnational perspective can enrich and inspire one’s visions for change. Legal reform that intends to correct sex inequality will not produce a different kind of sex inequality, if we are willing to look beyond two-parent marital families and the American border.
To Surveil and Predict is longer than the usual Jotwell suggestion. The authors carefully document and then explore the rights implications of the use of algorithmic and predictive tools by police forces in Canada. They conclude with a series of recommendations focused on public policy. My recommendation here is focused on the method and the equality focused parts of the report, although I like it all–a lot.
First, method. The Report works to expose and explore something that’s only just starting up. So classic doctrinal methods–where are the cases?–are not going to work well. But some of the analysis is quite legal, running things through Canadian human rights and charter provisions. At the same time and contrary to much (also very good) early work in this sector, they do not spend much time speculating about potential future technologies. Instead, Robertson, Khoo and Song pursued information (inter alia) about what was happening “on the ground” through freedom of information (FOI) requests. One of the many aspects of their work that I like: they provide information about how these requests were received and negotiated. (P. 13; Appendix A.) FOI is a critically important tool for researching the administrative state. How the process plays out is usually connected to the quality, volume and nature of the information obtained, but the process of making requests (and receiving replies, or not) is rarely described in articles. In my view, discussion of how the FOI requests worked in context is a good reason for adding length to research reports and analysis.
Other methodologies beyond doctrinal/theoretical analysis include convening a conference held under Chatham House rules (“participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed”), such that “insights from the symposium have informed some of the analyses in this report.” (P. 12.) From my experience, this is not a methodology expressly used or often described in legal research published in legal journals. Finally, they conducted a small number of interviews with key informants from the profession, and law enforcement. (P. 13.)
Through these methods, Robertson, Khoo and Song establish three categories of “algorithmic policing technologies”, the first two of which are also “predictive policing technologies.” All have been procured and/or deployed in Canada: location-focused algorithmic policing technologies, person-focused algorithmic policing technologies and algorithmic surveillance policing technologies (“sophisticated, but general, monitoring and surveillance technologies”). (P. 2, Pp. 38-69.)
For purposes of this Jotwell section, the meat of the report is in section 5.4, which considers the Right to Equality and Freedom from Discrimination. The authors have wisely taken an international human rights approach, so they are not limited to recognized rights under the Canadian Charter of Rights and Freedoms, or federal/provincial human rights codes. This ensures that along with racial discrimination (an early and continuing focus in the document), the authors take up concerns about socio-economic disadvantage as a salient ground of discrimination when these technologies are considered. (Pp. 113-119.)
Within the sections dealing specifically with equality and discrimination, they focus on three things. First, the operation of Virginia Eubank’s “feedback loops of injustice” (when data taken from a discriminatory system is used as the training material for an AI system). Second, the problem of hypervisibility for many low income people resulting from significant engagement with government systems. Finally, they turn to the ways that algorithmic approaches may build in discrimination but make it difficult to establish the cause, burying it in sophisticated techniques of maths and science. (“Inequality by Design and “Math-washing” Injustice” at P.122.)
In Canadian law, many criminal justice instances of racial discrimination have been dealt with not through the application of section 15 (the equality protection section of the Charter of rights and freedoms) but instead through other legal rights. This is at least in part because for some time the equality section has placed high barriers in front of claimants (U.S. readers might be interested to know, for instance, that collecting data disaggregated by race has not been a common practice and remains a controversial practice in Canada–which can make discharging the claimant’s burden of proof in section 15 equality cases difficult).
To Surveil and Predict, however, makes recommendations at the policy level–not tactical suggestions for constitutional litigation. Thus, they are both broader and more preventative, highlighting the inability of courts to do this kind of work when faced with constitutional challenges. The three recommendations specifically aimed at equality and discrimination (Pp. 159-160) include an immediate moratorium on use of past data sets to inform predictive policing, a federal judicial inquiry into any and all such repurposing of past police datasets, and a requirement that all use of predictive policing and other algorithmic surveillance policing technologies be subject to a tracking requirement to “monitor potential emergence of bias.” (P. 160.)
The report relies on some of the excellent work on AI, policing technologies and algorithmic predictive technologies produced in the U.S., as we might expect. The development and operationalization of predictive policing technologies has been prominent in that country. But in a “small” jurisdiction like ours, with our own unique constitutional protections and human rights laws in place, implications, as well as doctrinal and policy questions have to be considered anew. It is also possible that the different contexts will reveal new effects of predictive and other forms of algorithmic policing technologies. For example, to the extent that hypervisibility depends on the existence of state services and information sharing between them–it is possible that this concern is heightened in a state which provides, in general, more services. And the problem might be even greater in unitary systems where information sharing would be intragovernmental not necessarily “intergovernmental” as it often is in federal states like Canada (where there remains surprisingly little intergovernmental sharing) and the US.
It is clear that particular features of relevant doctrines will be key to policy recommendations, and that particular doctrinal requirements of proof will be major barriers. In particular, Canadian constitutional law does not require intent to discriminate, but uses a substantive definition of discrimination. Furthermore, Canadian constitutional law does not limit the grounds of discrimination, which might be particularly important given the fine-grained targeting based on multiple characteristics that these technologies are designed to produce. Finally, the particular political and legal conventions which operate to define and differentiate the private and the public might also be relevant here where the majority of the technologies are developed in the private sector and used by the public sector under a variety of arrangements which, as the authors note, might make access to the information required to understand what is actually happening in the operation of the technology quite difficult.
I think that this report is perhaps a bit long for me to urge everyone to read all of it here (I would if I could though!). But for scholars of equality–whether already interested or only vaguely aware of these new tools available to the state, and whether interested in Canada or not–I highly recommend at least those portions of To Surveil and Protect focused on method, and on the right to equality and discrimination.
Cite as: Sonia Lawrence, Beyond Predictions About Predictive Policing
(October 13, 2020) (reviewing Kate Robertson, Cynthia Khoo, and Yolanda Song, To Surveil and Predict: A Human Rights Analysis of Algorithmic Policing in Canada
, Citizen Lab and International Human Rights Program, University of Toronto