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
In July 2020, newspapers reported a study that ranked the United States as the second-worst country—after Mexico—to raise a family out of 35 OECD countries. The US failed, in particular, in the categories of cost to raise a family, time parents have to spend with their children, and safety as related to raising a family. Sadly, for families who struggle with this issue, this report held nothing surprising. The Free-Market Family (2020), by Maxine Eichner, affirms the study and adds much more. The book details, in a comprehensive and nuanced manner, the failure of the US to support its families. Eichner argues that over the past five decades the US has gradually adopted an extreme version of “free-market family policy,” in which the government’s role in helping families to care for their children, especially in their early years, is minimal. Families are sacrificed to the market’s mercy, juggling work and caregiving, in what becomes a mission impossible for all but the ultra-rich. The result is devastating: the well-being of most US families—measured across such standards as happiness, academic achievement, mental health, time to spend with family, and economic mobility—is significantly worse in comparison to other similar countries.
The Free-Market Family is mandatory reading for anyone who wants to understand how laissez-faire public policies fail most US families. Diligently and elegantly, Eichner maps and analyzes the various policies that contribute to this failure. One of the book’s primary strengths lies in the richness of disciplines, resources, and methodologies she engages—from history to political economy, from major news stories to economic data, from interviews with 39 parents to comparative policies across various nations. Together, the book provides a thorough and rigorous account of the policies that the US has embraced, including their political origins and their harm, and offers suggestions about how to correct them. Eichner’s style is crisp and delightful, making even her meticulous detailing of policies and data accessible to a broad audience without compromising the critical nuances of these issues. The personal narratives make the story less abstract, and are often very touching.
Economic inequality is the major story that Eichner tells. Although free-market policies harm most families—even middle- and upper-middle-class—not surprisingly, those who are harmed the most are poor and working-class families. Many of these families’ problems stem from the economic insecurity they face and from the government’s hands-off policies. Due to unstable jobs, child benefits in a form of a tax credit (rather than guaranteeing minimum income), and welfare policies that aim mainly at putting parents to work (often even in the year that a child is born), low-income parents often struggle to put food on their family’s table or provide stable housing. In the first year after a child’s birth, a period that is enormously important to the child’s development and to the recovery of the birth mother, they often cannot afford even a short time of parental leave, let alone an entire year (and often need to pay a hospital bill). Yet, the federal law provides only three months of unpaid parental leave, and, thanks to exemptions, a large percentage of families do not qualify for even this benefit. The US is the only OECD country without a policy of paid parental leave.
At the same time, parents’ work hours can be highly unpredictable, they might need to work nights and/or take second and third jobs—all of which make the task of finding good childcare nearly impossible. Further, government failure to provide subsidized daycare, as well as reliable and supervised care centers, make their parenting task impossible: not only do they experience the stress of juggling all this (indeed, surviving), they cannot spend time with their children or provide quality parenting. In a system that strongly relies on parents to privately navigate raising children, these parents have less time and fewer resources to spend on their children than their more affluent counterparts. The result is that economic mobility for children from these families is significantly lower than in other countries (P. 9). Finally, prekindergarten programs—which play an important role in equalizing between children from wealthy and low-income families—are too expensive and typically inaccessible to most. Fewer than 40 percent of three-year-old in the US are enrolled in such programs, compared with 90 percent in such countries as France, the UK, Germany, and Israel (P. 113). This is just the tip of the iceberg of the account that the book provides of how “poor and low-income families bear the harshest burdens of free-market family policy” (P. 119).
The free-market family-policy approach that the US has adopted, Eichner persuasively contends, is so radical that policymakers frequently prioritize market operations that harm the family, instead of markets that work for improving the well-being of families. Conversely, in a “pro-family” approach—a version of which has been adopted by virtually all other wealthy democracies, and often by countries that are much less wealthy than the US— the market constrained by the government in order to help the people. These policies include: limiting work hours so parents can spend time with their families, publicly paid parental leave for up to a year (in the case of two parents, policy often includes incentives for the other parent to take some leave), strong safety-net programs, child benefits in the form of monthly income, and subsidized and supervised quality daycare—to name just a few.
The US’s radical market-centric approach to family policy has not always been its governing ideology. Rather, in one of the best chapters in the book, Eichner recounts that during much of the twentieth century “the role of the government in safeguarding the well-being of families against harmful market forces was a fundamental part of our nation’s social contract” (P. 159). Knowing that the free-market approach is a political choice, Eichner sketches a roadmap for a pro-family agenda, arguing that adopting pro-family policies will not decrease productivity or growth. Further, her proposal is not limited to listing specific policies, but attacks the core of this structural inequality. She asserts that reducing economic equality is a central goal that will improve well-being and will generally enable a more just society.
Ten years ago, Eichner wrote The Supportive State: Families, Government, and America’s Political Ideals. That book, grounded in political theory, argues that the state is responsible for creating the conditions that will help families with their caretaking needs. In using liberalism as her main framework, Eichner criticized the notion that when it comes to families the state’s values should be those of negative autonomy and state neutrality. The Free-Market Family takes this argument one step further. It constitutes an unapologetic attack on the free-market approach—not just on account of the policy outcomes it produces but also on the grounds that we must have principles other than market ones. The book taps into a large and growing literature on the wages of neo-liberalism on inequality and is a part of this growing conversation that is grounded in a political economy approach. Like its predecessor, this book will benefit a larger audience than legal theorists and family law scholars—it is a must read for anyone who cares about economic inequality, its sources, and how it crushes US families.
The rule of law is a ubiquitous if elusive policy and legal term deployed worldwide. It is also a founding narrative of British colonialism. It thus strikes some as anathema to equality. But given its foundational stature in numerous legal orders, when equality-promoting measures are perceived as promoting the rule of law, they can receive the validation they may desperately need. Conversely, when such measures are seen to offend the rule of law, they risk being dismissed as constitutionally illegitimate. What we understand the rule of law to be, then, vitally matters to substantive equality goals. Currently, a formal or thin conception prevails in many jurisdictions. In this narrow conceptualization, the rule of law is directed at maintaining formal separation of powers and a system of positive laws where all exercise of public authority has a legal source, and no one is above the law.
Many equality initiatives, however, to be seen to have rule of law backing and thus legal legitimacy, need a thicker account of the rule of law, one that can keep pace with changing social mores and normative commitments. How, then, to move our legal systems toward this thicker conceptualization? In The Spousal Support Advisory Guidelines, Soft Law, and the Procedural Rule of Law, Jodi Lazare deftly contributes one answer to this all-embracing question with her analysis of a particular tool meant to ensure women’s substantive equality: the Spousal Support Advisory Guidelines (“the Advisory Guidelines”) in Canada.
Lazare explains that the Advisory Guidelines, which set out “ranges of both amount and duration of support” (P. 317) upon relationship breakdown in various circumstances, were intended to bring more consistency to the judicial discretion judges had under the Divorce Act to make awards. Authored by two family professors working with a 15-member advisory committee, she summarizes the comprehensive consultation and deliberation that took place across Canada with the family law bar and bench to generate their content. While impressively engendered through the “ground up” (P. 320) and although the Department of Justice funded the research, the Advisory Guidelines are not the result of any legislative act and are also not mentioned in any piece of related legislation.
Whereas some courts in certain provinces have endorsed the Advisory Guidelines in their making of spousal support awards as a legitimate guide for judicial discretion, courts in other provinces have dismissed them because they are not legislative in character, viewing them as “informal, unofficial, and non-binding (in) nature” (P. 318) and any judicial reliance on them as an affront to the rule of law. As a result of the mixed judicial reaction, “the unpredictability and sense of injustice that provided the impetus for the creation of the Advisory Guidelines continue to undermine the family law system.” (P. 319.) Lazare’s analysis is devoted to showing why “judicial reliance on the Advisory Guideline might be understood as upholding, rather than offending, the foundational constitutional principle.” (P. 343.)
Her analysis deploys public law theory (administrative, constitutional, and rule of law) and a discussion of deliberative democracy to do so. What could understandably have been an abstruse argument given the conceptually dense subject matter is instead rendered as a concise, accessible, and generative analysis that impresses upon its reader both the analytical acumen and elegance in writing of the author, but also the pressing need for equality advocates not to abandon the rule of law as a colonial holdover. Lazare shows, through the prism of family law and spousal support in particular, why equality advocates need to thicken the meaning of the rule of law so as to “open up new understandings of legitimacy and expand the existing pool of sources of normativity” (P. 345) as to what law is and how it comes into being.
She begins her argument by explaining how the Advisory Guidelines promote substantive gender equality for women who are most often the dependent spouse. (Pp. 322-24.) After making this connection, Lazare is then able to focus on making the case as to why the Advisory Guidelines’ “soft law”-like status is actually compatible with the rule of law properly conceived (even though, as Lazare acknowledges, the Advisory Guidelines are likely more reprehensible to rule of law purists than actual “soft law” as the former are not only unlegislated but also not created by the administrative or executive branch or any public authority).
Lazare builds a layered argument for why the rule of law should be “something more than a requirement of form and authorship.” (P. 335.) She calls for a vision of the rule of law that aligns with “thick constitutionalism” (P. 333), specifically locating the rule of law features of the Advisory Guidelines in the quality of the procedures that led to their creation, arguing that the Advisory Guidelines’ deliberative democratic genesis is superior to anything emanating from formally legislated sources as they pertain to spousal support. Lazare persuasively argues that policy-making that is the outcome of deliberative democratic principles and mindful of constitutional values respects the rule of law despite its informal, unbinding, and non-legislated character.
As Lazare sensibly recognizes, her article “does not purport to settle the meaning of the rule of law.” (P. 343.) But what her grounded analysis of the Advisory Guidelines does is to provide a persuasive equality-focused analysis of why legal thinking about the rule of law should not remain tethered to a thin conceptualization in Canada (or elsewhere). As she notes, her argument has resonance beyond equality for women or other dependent spouses in family law. Consider animal rights, another important research area for Lazare. Establishing that the rule of law properly conceived permits, say, courts to treat guidelines from animal protection organizations with similar quality of deliberation to those underlying the Advisory Guidelines would be a powerful legal argument in a legal landscape where animal interests are overwhelmingly absented.
Further, Lazare’s careful and cogent analysis prompts scholars like myself, seeking to mine the rule of law in aid of animal protection because of its formidable legitimating value, to closely consider the nuances of what a properly conceived thick description of the rule of law would be. Her argument that a deliberatively democratic process and general respect for constitutional values like equality can impart legal character to guidelines developed by non-public entities, also implicitly highlights the illegitimacy when such deliberation is absent in the documents produced by non-public entities such as agricultural industry-driven norms regarding the farming of animals.
In other words, Lazare’s analysis helps us to see when the outputs of non-public actors can legitimately supplement judicial discretion, but also the dangers of regulatory capture. Her analysis advances a deeper contemplation of precisely how to thicken the concept of the rule of law. In doing so, the analysis productively moves the conversation forward in Canada about the need to rethink the rule of law and how to rehabilitate it from a tool of colonialism to an ally of equality.
Bethany Berger’s article Savage Equalities is an excellent exploration of the importance and varied meaning of equality in the context of tribal rights and Federal Indian Law. Berger carefully evaluates the various types of equality claims that are levied in relation to tribes, including the idea that recognition of tribal sovereignty creates special rights for tribes that denigrate the equality rights of non-Indians (or even, according to some formulations, Indians), the idea that recognition of tribal sovereignty is necessary to foster equal treatment of tribes and tribal citizens, and finally the concern that Indian tribes’ governmental actions sometimes violate their own citizens’ rights to equality. She traces the prevalence and deployment of these ideas through the tortuous history of the federal government’s relationship to tribes, showing how, for example, the idea of unfair “special rights” for tribes was used during particularly dark periods of federal-tribal relations such as the allotment period, when the idea purportedly justified harming tribes by unlawfully taking their property. The taking of tribal property at the time was deemed necessary to level the playing field for individual non-Indians who were seen as unfairly lacking these special rights.
Berger similarly traces the understanding of the right to tribal sovereignty as rooted in, and necessary for, equality through more positive periods of history, and she additionally identifies instances where individuals under tribal jurisdiction have been denied their rights to equality at the hands of tribal governments.
In some ways, Berger’s work builds on previous scholarship about the distrust of tribal governance rights resulting from strict adherence to a liberalist worldview. However, Berger’s article is unique in her comprehensive focus on the various and often contradictory visions of equality that are brought to bear in the tribal context and in her proposal for an innovative framework to help us evaluate these claims in a reasoned way.
Her framework consists of a threefold evaluation of competing claims to equality: “First by taking seriously the idea of tribal governmental equality. Second, by considering how history and context affect the present meaning of these claims. And, finally, third, by evaluating how challenged measures will affect the least well off.” (P. 319.) Her framework provides much-needed tools to rigorously evaluate competing claims to equality in the context of tribal governance and individual rights and to identify spurious equality arguments that are rooted in a coopting of equality language, such as the idea that the Termination Period, during which the federal government ended its special relationship to many Indian tribes, actually effected an emancipation of those tribes who were affected by the policy, similar to the abolition of slavery for African-Americans. (P. 611.) Although the approach and structure of the framework are different, Berger’s concept reminded me of another very valuable test in the equality arena, namely Davina Cooper’s examination of whether an alleged form of oppression constitutes an “organising principle of inequality.”
Another extremely valuable part of Berger’s work is her evaluation of the utilization of these equality arguments in the context of three culturally salient examples—the contention that the Indian Child Welfare Act (ICWA) violates the equal protection rights of Indian children, the argument that the equal protection rights of Cherokee Freedmen were being violated by the Cherokee Nation is in its efforts to exclude them from the Tribe, and, finally, the argument that tribal treaty fishing rights in the Pacific Northwest and the Midwest create special rights for tribal citizens that unfairly put non-Indian fishers in an unequal position. Because federal Indian law scholars and practitioners are very familiar with all three of these arguments, Berger’s application of her framework to them helps us understand how the framework works and highlights its usefulness.
In the context of ICWA, for example, Berger uses the second principle of her framework to reinforce the need to take into account the long history of state and federal removal of Indian children, often to further assimilationist goals, when evaluating current claims that the law violates equality principles. (P. 623.) With regard to the third principle, the effect of the challenged measures on the least well off, Berger explores an instance in an important recent Supreme Court case, Adoptive Couple v. Baby Girl, where the wealth of the white adoptive couple was used as ammunition by the guardian ad litem and others to support the idea that the adoptive couple had a superior claim to the child to that of her biological father, whose general fitness as a parent was not disputed. (P. 630.) Thus, Berger notes that, “in protecting the children of less well-off parents and communities against more powerful ones trying to take them away, ICWA in fact helps remedy inequitable power imbalances in child custody cases.” (P. 630.)
Finally, Savage Equalities provides a rich historical recapitulation of the use of equality arguments in relation to tribes from the sixteenth century on. History is distinctively important in federal Indian law—almost to the point that every article in the field can be judged by how well it explains the portions of history that are relevant to the points it is making—and Berger’s historical overview is particularly fascinating and meaningful. Her article traverses the birth of international law in the sixteenth century, when Francisco de Vitoria and others critiqued the justice of European sovereigns’ claims that they gained power over portions of the New World and the indigenous people inhabiting those areas by virtue of having “discovered” them (P. 598-601), the flip-flopping views of the American Founders as to tribal rights, and the background of the seminal case, Morton v. Mancari, in the 1970s. (P. 616.)
One of her most interesting notes is her observation that early abolitionists were often inspired to end, not just the evils of slavery, but also unfair denials of tribal sovereignty, 606, thus demonstrating a longstanding synergy between individual civil rights and the sovereignty rights of tribal governments. Berger uses her evocative historical overview to demonstrate key points in her argument, such as the idea that past “policies built on the insistence that Native people were entitled only to individual equality [rather than also to protection of their tribal governments and cultures] are today recognized as among the most inegalitarian in the long, sad history of federal Indian policy.” (P. 602.)
Savage Equalities is a wise and engaging work that will make you think in new ways about old wrongs. Even more importantly, it provides indispensable tools to evaluate competing equality claims pertaining to tribal governments. By blazing a trail for rejection of baseless claims and acceptance of legitimate ones, it furthers justice in this important area.
Were I to describe Rachel Louise Snyder’s new book – No Visible Bruises: What We Don’t Know About Domestic Violence Can Kill Us – in three words they would be: comprehensive, concrete, and captivating.
No Visible Bruises offers a truly comprehensive exploration of the problem of domestic violence and our socio-legal responses to it. The book is framed around key stories and insights from victims and perpetrators, law enforcement, and academics and advocates who have worked to reform social and legal responses to intimate partner violence. The book convincingly demonstrates the systemic nature of the problem in part because it is so comprehensive in its assessment of the issue. Snyder draws connections between the pervasive and silent character of domestic violence and the economy, education systems, social stigma, sexism and intergenerational abuse. Using specific examples like family justice centers, multidisciplinary high risk response teams, batterer intervention programs, police protocols, researchers and fatality review teams No Visible Bruises canvasses the past several decades of reform to socio-legal responses to domestic violence. Snyder traces the history of the movement to reform how law enforcement, social workers and courts address domestic violence and examines how these efforts take shape today.
The book challenges head on some of the more tenacious myths about domestic violence. For example, Snyder relies upon several high profile cases in which women were murdered by their husbands or partners to explain why for many women remaining in, or returning to, violent relationships is a survival mechanism. In doing so she thoroughly discredits the myth that if the violence was severe enough women would just leave. One of the key stories in the book, indeed the story that opens the book, involves the murder of Michelle Monson and her children by her husband. As Snyder aptly demonstrates, one of the most dangerous circumstances for a victim of domestic violence is when she attempts to leave. A woman’s risk of being murdered by her former partner in the weeks and months following a break-up is alarmingly elevated. Perpetrators are likely to escalate their violence when victims try to leave. Victims of domestic violence, Snyder suggests, know this. Michelle Monson knew this and so, as often happens, following her attempt to leave, her report to the police and disclosure to her family, Michelle Monson recanted and returned to her abuser after he was released. Snyder writes:
Michelle did not recant because she was a coward, or because she believed she had overreacted . . . She did not recant because she was crazy . . . or because any of this was anything less than a matter of life and death. She did not recant because she had lied. She recanted to stay alive. She recanted to keep her children alive. Victims stay because they know that any sudden move will provoke the bear. (P. 53.)
One of the book’s most important, and heart wrenching, contributions involves an examination of the risk assessment tools that have been developed to predict which cases of domestic violence are most likely to result in fatalities. Snyder suggests that the development of a danger assessment tool, which has been adapted for use by police, lawyers, courts, advocates and healthcare workers, is the single most important tool used in domestic violence situations today. This instrument was developed based on studies of domestic violence cases which did result in a fatality. Researchers and advocates were able to identify numerous commonalities, such as previous incidents of strangulation, threats of suicide, substance abuse or addiction, forced sex and violence during pregnancy, between the cases they studied. As Snyder explains, danger assessments ask a set of questions the answers to which predict the likelihood that a perpetrator’s violence will become lethal, triggering law enforcement, domestic violence advocates and health care professionals to take additional steps to protect victims. She suggests that this approach has saved countless lives. Snyder’s discussion of this tool is heart wrenching because so many of the factors that these assessments are designed to reveal were present in the key cases featured in No Visible Bruises. Would Michelle Monson and others be alive today if a danger assessment had been conducted?
According to Snyder there is one further factor that is key to designing preventative responses to domestic violence fatalities: communication.
No Visible Bruises demonstrates the critical role that communication plays in making domestic violence less lethal. Snyder writes (P. 276), “[i]f I had to whittle down the changing world of domestic violence to just one idea that made all the difference, it would be communication”. It is painful to read Snyder’s detailed accounts of murders that might have been avoided with better communication between advocates, police and legal professionals.
No Visible Bruises is immediately engaging. It is an exceptionally well written example of literary journalism. Snyder threads the stories, insights and experiences of numerous individuals (victim/survivors, abusers, police officers, lawyers, academics, advocates and front line service providers) throughout the monograph making the issues and struggles addressed in the book vivid and real.
The book is as rigorous as it is dramatic and emotional. It reflects years of research, multiple interviews with many of her informants and countless site visits across the United States. No Visible Bruises captures the lived realities of women murdered by their intimate partners. Snyder demonstrates how these women could have survived with knowledge, communication between police, legal professionals and advocates, and systemized and coordinated response processes. No Visible Bruises is compassionate, unapologetically feminist, and insightful.
When you picture the rural, what does it look like to you? Perhaps you think of cowboys and the Wild West or Midwestern farmers or coal miners in Appalachia. When you think of the characters that inhabit your mental image, aren’t they White? This is the widespread image that Maybell Romero challenges in her recent law review article, arguing that such a homogenously White perception of rural spaces has significant institutional impacts for people of color living in these areas. Romero uses her article to advocate for mandatory cultural competency trainings and data collection in rural prosecutorial offices. Proper collection and analysis of this data will help shed light on the extent of racial disparities in the rural criminal justice system. Romero also challenges us to view rural areas with more nuance; they are not the racially monolithic places that inhabit most Americans’ perceptions. Expanding our racial view of the rural will help us adopt a “thicker” definition of justice, one that truly serves all those living in rural communities.
Romero notes that in pop culture, rural America is often conceptualized in one of two dichotomous ways. The rural is either an Andy Griffith-esque heartland of traditional American values or it is a lawless wasteland characterized by drug-addiction and violence. The thing both of these conceptualizations share is that the inhabitants of both are exclusively White. The focus of Romero’s article is rural Maine, a place that many Americans would expect to be almost entirely homogenous. When considering challenges faced by rural Mainers, people of color are very often overlooked or forgotten completely.
By using an expanded conception of rural, Romero is able to situate narratives of exclusion, which are not inherently rural, within her discussion of rural prosecutorial discretion. Romero defines rural not in terms of population, but as a “theoretical and cultural concept.” (P. 234.) For the purposes of her article, Romero uses rural as an analog for conceptual distance from power; communities that are forgotten or excluded from the decision-making process. This broader definition of rural allows readers to better understand challenges faced by rural communities of color by drawing from their own understanding of cultural isolation that also exists in non-rural places. Romero begins her article with a quote from Maine’s former Trump-like governor Paul Le Page, which simultaneously paints Black and Hispanic people as drug-dealers and also as exclusively non-Mainers. Maine is considered a mostly-rural state by population estimates, but Romero also uses places like Cumberland County, the most populous county in Maine, to illustrate her points about racial disparities within the criminal justice system. The reason she does this is a practical necessity: there is a paucity of data regarding how rural institutions interact with communities of color. While there have been many studies highlighting racial disparities in urban criminal justice systems, very little scholastic analysis has been devoted to the implicit and explicit biases that also exist in rural areas.
The lack of data about rural prosecutorial bias is even more troubling given rural demographic trends. Population growth for non-White rural residents outpaces that for White residents. Romero notes several reasons for this shift. (P. 230.) In Maine, Whites are moving to urban areas and away from manual jobs such as agriculture and animal processing. Maine legislators have noticed this population drain and have passed tax credits and student loan reimbursements to incentivize new residents to move to the state. A sizable portion of these new Mainers are people of color, attracted by the prospects of employment and reduced land prices. Id. In a generation, the racial makeup of many rural places, both in Maine and nationwide, could be drastically different. Rural criminal justice systems may not be prepared to treat these new residents with cultural competency.
Perceiving rural America as a wholly White space exacerbates “otherness” towards rural communities of color, who are already disproportionately criminalized by the justice system. Perhaps due to small, often indeed homogenous, communities that rural life fosters coupled with many residents’ resistance to trends of inclusivity, rural life often exacerbates oppression felt by people of color. Though non-Whites make up 15% of the rural population, institutions and systems, including the criminal justice system, are rarely operated with access considerations to communities of color. (P. 232.) Consequently, many of these communities are understandably skeptical about the actual neutrality of the courts.
Black Mainers are six times more likely to be incarcerated than Whites, and Maine’s Indigenous and Latino populations are also locked up at disproportionately higher rates. (P. 236.) These inequities are mirrored in the juvenile justice system, negatively influencing the future of many of the rural’s younger residents. Prosecutors have a high degree of discretion regarding what crimes they prosecute and to what degree of severity. The vast majority (95%) of elected prosecutors nationwide are White (P. 239), and conscious or unconscious biases towards people of color have inevitably shaped many prosecutorial decisions.
Many of the challenges faced by people of color who live in rural areas mirror those faced by people of color in urban spaces. However, without adequate data assessing racial disparities in rural criminal justice systems, these problems will remain largely unseen and untreated. Scholars of criminal justice reform should take note of Romero’s article and consider whether their research could also address access problems faced by rural residents of color. Uncovering the extent of bias in rural prosecutorial decisions is the first step in creating a more equitable justice system.
Many legal scholars who care about social and economic equality spend time focusing on constitutional, anti-discrimination, criminal, or private law subjects; yet, a country’s tax code is the government’s most substantial tool for advancing social and economic policy. Its ramifications for equality are substantial.
Many tax scholars have uncovered the gender and race bias embedded in tax law. (Just to illustrate, see the work of terrific people like Dorothy Brown or Kathleen Lahey.) Yet, there has been surprisingly little change to codes around the world to bring them into conformity with the recommendations of those scholars. Perhaps Kleiman, Matsui and Mitchell’s report, The Faulty Foundations of the Tax Code: Gender and Racial Bias in Our Tax Laws, will help.
Kleiman is an assistant professor at the University of San Diego School of Law; she’s joined by two co-authors, each of whom is affiliated with the National Women’s Law Centre. The report is a model for how legal academics might work collaboratively with those in the policy space to advance evidence-based research with a view to promoting progressive change.
The report is divided into seven parts. The first four address design features of the US tax Code that disadvantage women and people of color. While the Code may appear to be neutral in its application, it creates a range of incentives and benefits that drive from underlying behavior and social structures that reflect women and people of colour’s experience of systemic discrimination.
Readers from outside the US will have a sense of the idiosyncratic US-decision to allow joint filing by spouses. The report highlights two of the issues that arise from that practice – the reduced tax liability that results from marriage and the disincentive for women to enter the paid workforce. Most countries resolved those gender- and race-discrimination issues decades ago (if they ever had them).
Additional discriminatory provisions that are relied up to calculate taxpayers’ income are also explained. For example, unpaid work in the home is not accommodated in the design of tax codes with the result that an incentive is created for women to provide substantial informal services to their families. All workers incur costs in order to work: the code generally allows the kinds of costs incurred by men (for example, by allowing the deducibility of luxury meals, travel, and accommodation), while denying or under-reflecting the kinds of costs incurred by women (for example, child care costs). Some kinds of employment-based compensation are taxed – for example, awards for workplace discrimination, which are more likely to be received by women and people of color, while other forms of compensation are exempt from tax — for example, worker’s compensation, which is more likely to be received by men.
The report also looks at the implications of the taxation of savings and wealth. The benefit of reduced tax rates for savings accrue primarily to high-income earners (more likely to be white men) as do the benefits of a range of housing preferences. Inability to access housing preferences has particularly pernicious effects for people of color; an observation also made by others.
The gender and race-based biases in tax codes around the world have been studied extensively. What makes this report worth reading is the accessibility of the authors’ approach.
Additionally, in Part V, the report makes a relatively unique contribution in its discussion of the gender and race-implications of tax administration. For example, the US relies extensively on the Earned Income Tax Credit as a means of raising the income of those in working households above the poverty line. The EITC plays a valuable (if inadequate) function in facilitating income security. However, the IRS devotes substantial tax administration and audit resources to policing EITC claims; that means, low-income people, women, and people of color are more likely subject to the attention of the IRS. This contrasts with the quite troubling decline of enforcement attention paid to high-net worth individuals and multinational companies.
Finally, in Part VI, the report turns to the question of process: how might policy-makers better inform themselves about and understand the implications of gender and race bias in the Code. The authors focus on the need for better disaggregated data and more robust reporting requirements.
If you have never turned your mind to the way our tax code intersects with equality aspirations, then this report is a must read. And if tax equality is an ongoing preoccupation, this report offers a few gems on the more neglected topic of differential tax enforcement.
Tracy A. Thomas, Leveling Down Gender Equality, 42 Harv. Women’s L.J. 177 (2019).
Sessions v. Morales-Santana is a curious case of gender equality, simultaneously celebrated for refining the Supreme Court’s view on sex-classification while condemned for providing the plaintiff “the mean remedy.” Striking down a gender-based distinction in the Immigration and Nationality Act (“INA”) by arguing against legislating based on gender stereotypes, it is a landmark success for Justice Ruth Bader Ginsburg and the liberal feminist brand of equality jurisprudence. Refusing to grant the plaintiff citizenship by offering a leveling-down remedy, it is a cruel blow to the plaintiff, whose win in the nation’s equality law is a loss in his unequal life. Tracy A. Thomas’ Leveling Down Gender Equality provides a deliberate critique that details the Court’s decision in the historical context of immigration laws and gender equality review, sheds light on the dark sides of celebrity Justice Ginsburg’s gender equality jurisprudence, and proposes a way forward: “leveling up” as the presumption. It is a must-read for anyone who wonders what has happened to Ginsburg’s gender equality jurisprudence and what to do about the Court’s mean remedy.
Morales-Santana was decided in the second year of the Trump administration and in the wake of its anti-immigration policy. Born in 1962 in the Dominican Republic to an unwed American citizen father of Puerto Rican origin and a Dominican Republic citizen mother, the plaintiff Luis Morales-Santana had lived in the United States since he was thirteen. The INA’s requirement of derivative citizenship for children born overseas to one American citizen parent in effect at Morales-Santana’s birth adopted a gender- and marital-status-based distinction by setting a longer physical presence requirement for citizen fathers and shorter physical presence requirement for unwed citizen mothers. Morales-Santana was not qualified for citizenship because his father had failed to meet the INA’s physical presence requirement for unwed fathers by a matter of days, and was to be deported as a non-citizen with several convictions. His father, however, would have satisfied, if female, the lesser stringent requirement for unwed citizen mothers to transfer derivative citizenship. Morales-Santana claimed that the INA’s gender-based distinction was a violation of gender equality, and requested that the rule for unwed citizen mothers be applied to him and that he be granted American citizenship.
The Court had previously reviewed and upheld the INA’s gender- and marital-status based distinctions that imposed more rigorous requirements for unwed citizen fathers to convey citizenship to their overseas-born children in Miller v. Albright and Tuan Anh Nguyen v. INS. Ginsburg— then a junior member of the Court— was one of the dissenters in both cases. Morales-Santana marks her success in converting her prior dissent into a majority opinion. Writing for the majority as a senior member of the Court, she repudiated the statutory gender stereotype assumption that unwed fathers cared little about their children whereas “the mother was regarded as the child’s natural and sole guardian” (Morales-Santana) for its failure to meet her favored heightened scrutiny’s “exceedingly persuasive justification” requirement in United States v. Virginia, the very first gender equality case that Ginsburg wrote and read for the majority.
Ginsburg’s notable success in striking down gender-based citizenship laws, however, did not activate Morales-Santana’s nationality. The Court refused to grant Morales-Santana’s requested remedy and instead applied the more rigorous rule for unwed fathers to everyone — that is, treating mothers like fathers — by arguing that it would have been Congress’s legislative decision. However, the Court did require that Congress’s future decision be gender-neutral and impose the same treatment for wed and unwed parents. One cannot help but wonder to whom and for whom the Court delivered equality.
The core mission of Leveling Down Gender Equality is to rebut the Court’s remedy presumption that leveling-up (extension) and leveling-down (nullification) are equally valid remedies for a violation of equality and to argue for the presumption of leveling up to protect the right to a meaningful remedy. From Thomas’ point of view, the answer to the curious case of Ginsburg’s equality and Morales-Santana’s nationality lies in the Court’s choice of remedy, rather than in its choice of equality review (anti-classification or anti-subordination). She began her adventure by first explaining the Court’s mean remedy and alternative remedies considered but not adopted in detail (Part I), then argued for the presumption of leveling up (Part II) and reasoned why leveling down should be treated as a rare exception (Part III).
The highlights of Part I lie in its success in locating the mean remedy in the context of Ginsburg’s gender equality jurisprudence and judicial philosophy. Thomas refuted the convenient guess that the mean remedy was a pragmatic strategy to achieve majority, and argued instead that Ginsburg’s choice of eliminating preference for women “fits within her bigger concern about stereotypes, backlash, and denial stemming from protectionism” (P. 190) and was guided by her “deeper jurisprudential concerns about systematic gender norms” (P. 191) and preference for judicial constraint. Comparing what “then-professor Ginsburg” had said to what “Justice Ginsburg” did in Morales-Santana, Thomas showed how Justice Ginsburg, while maintaining then-professor Ginsburg’s preference for the “legislative-like role of the court” in remedial decisions, failed to employ then-professor Ginsburg’s proposed guidelines, which would have supported leveling up. She forcefully demonstrated that Justice Ginsburg “had the precedents for leveling up on her side, yet she adopted the countervailing view in the name of judicial restraint” (P. 193), and criticized Ginsburg’s omission, misreading and non-engagement with gender equality precedents which would have required stronger evidence of legislative intent and evaluations of equitable considerations as well as their implications that extension, rather than nullification, had been a generally preferred choice.
Should Justice Ginsburg have followed then-professor Ginsburg’s proposed guidelines and the gender equality precedents, she would have been able to reconcile her objections to laws based on gender stereotypes and preference for judicial constraint. She would have reached a different conclusion regarding remedy. “The lack of clear, established legislative intent, the influence of racism and nativism on the formation of the ten year rule, equitable considerations of harms to children, and the strong judicial preference for extension,” Thomas argued, “all supported leveling up.” (P. 196.) While Thomas was unable to explain Ginsburg’s “mistakes” and inconsistency and her consequent willingness to level down, her discussion has proved how and why Ginsburg could have acted otherwise.
The second step of Thomas’ mission is to establish the presumption of leveling up and leveling down as the rare exception. Relying on the familiar feminist critique that equality means more than mere formal equal treatment, Thomas argued for equality as equal concern. She contended that leveling down for gender equality is normatively inconsistent with constitutional requirement, because “denying a benefit in order to rectify inequality . . . fails to honor or effectuate the ultimate meaning of the operative constitutional right.” (P. 200.) She cited Palmer v. Thompson as an example to show how closing down all pools to remedy racially segregated swimming pools serves to perpetuate and reinforce, rather than abolish, racial inequality. On top of leaving inequality intact, she argued, leveling down will also discourage legal actions for justice and compromise citizens’ ability to “act as private attorney generals to help enforce the public laws of gender equality.” (P. 201.)
In her arguments against leveling down as a meaningful remedy for plaintiffs, Thomas invoked Ginsburg’s own judicial record to demonstrate how Justice Ginsburg has deviated from her professional past. In United States v. Virginia, Ginsburg made clear that the plaintiff’s rightful position was the targeted goal of equal protection remedy, which demanded to eliminate both the ongoing discrimination and the discriminatory effects of the past. Writing for the majority, Ginsburg rejected the defendant’s choice of remedy to provide a separate military education for women, and emphasized that the key question for the Court was the plaintiff’s denied benefit. Again, should Ginsburg have done what Ginsburg did in Virginia, an extension would have been the remedy for Morales-Santana. Besides, Ginsburg’s decision does not survive the test of valuing equitable concerns relevant to overcoming leveling up (cost or economic impact, harms to third parties, and broader national policy concerns). The legislative history of intent to discriminate against Mexican and Asian people should have been taken into account.
The Court’s records in gender equality cases, which evaluated the defendant’s interests and concerns to perform a remedial calculus to avoid inequality by the remedy itself, should have been taken seriously. The Court would have therefore considered the harms to children and U.S. mothers to balance away from leveling down. All in all, the mean remedy is not the right remedy. Thomas’ criticism that “stopping gender stereotypes from operating in the future to third parties may seem satisfactory to Justice Ginsburg, but it is not an individualized remedy adequately providing meaningful, tangible redress for the specific harms suffered by the individual plaintiff” (Pp. 207-08) suggests that Ginsburg’s idea of gender equality is purchased at the price of Morales-Santana’s nationality and equality and that Ginsburg’s judicial philosophy offers no justification for her choice of remedy.
At the end of the article, Thomas delivered her final blow to the case and concluded that “such a case does not leave a promising legacy for gender equality jurisprudence, but instead takes one giant constitutional step backwards.” (P. 218.) I cannot agree more with this conclusion. However, I would like to see more critical engagement with the issue of illegitimacy discrimination, as well as with the issue of the standard of equality scrutiny: will an anti-subordination review hinder the remedial choice of leveling down? Does a move “away from a formalistic parallelism and into a substantive inquiry” (P. 217) require not only changing remedial choice but also changing the standard of equality review? Is the idea of equality as “equal concern” (a Dworkinian concept) equivalent to substantive equality, which centers on the hierarchy of power?
A final note. As a precedent, Morales-Santana now lies as “an open wound.” (P. 217.) The wound should serve as a reminder of America’s past in its local and global context. I was drawn to the curious case of Morales-Santana due to my interest in the Court’s gender equality jurisprudence and my identity as a Taiwanese feminist. Taiwan is one of the global south countries where American troops left behind children whom they fathered with local women through buying, raping, or dating them during the Cold War. Lorelyn Miller was born in the Philippines, in 1970, to unwed parents, an American soldier father and a Filipino national mother. Tuan Anh Nguyen was born in Vietnam, in 1968, to an unwed pair, an American citizen father and a Vietnamese mother.
Morales-Santana’s parents have a different story: Morales-Santana’s father is from Puerto Rico – a so-called unincorporated territory that, in the words of the Supreme Court of the United States in a series of decisions known as “the Insular Cases,” “belongs to, but is not a part of, the United States”—, and he was born in a Caribbean country to a Dominican mother. While Lorelyn Miller never lived in the United States at least until after her 21st birthday, Tuan Anh Nguyen and Morales-Santana share a commonality of being non-white children born overseas to unwed American fathers and local mothers and having migrated to the United States. Morales-Santana’s reach extends beyond American borders. Its potential victims include children and mothers who reside outside the United States and who might have no or little knowledge about the case or their (dis)qualification for American citizenship under the INA. Legislative and judicial efforts are required to redress their harms.