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Nonmarital Equality in a New Light

Nausica Palazzo, Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships, __ Colum. J. Gender & L. __ (forthcoming, 2022), available at SSRN.

The classic story of marriage equality figures same-sex couples’ various maneuvers to enter the legal institution of marriage through the courts, claiming the right to be treated the same as opposite-sex couples and repudiating the counter-claim that same-sex couples ought to be treated differently. Its narratives are dominated by the first part of Aristotle’s equality axiom “likes alike,” yet haunted by the second part of the axiom: “unlikes unlike.” Its counter-stories embrace diverse demands for nonmarriage equality, arguing for alternative forms and mechanisms of relationship recognition based on the objection to the supremacy of marriage and the Aristotelian axiom.

A UK couple, Steinfeld and Jeidan, and an Austrian couple, Ratzenböck and Seydl, went to courts seeking legal recognition of their relationships in forms other than marriage. They are opposite-sex couples seeking to register for same-sex civil partnerships. Their court challenges reverse the equation in the classic marriage equality model. Here are opposite-sex couples demanding to be treated like same-sex couples, not the other way around. Their stories became part of the emerging case law in Europe that is the subject of Nausica Palazzo’s article Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships.

Marriage Apostates stands out in the scholarship of nonmarriage equality for its choice of subject and its pragmatic proposal for incremental change. Shedding light on this under-noticed development across Europe, Palazzo gives it meaning that eases the assimilation concerns about the Aristotelian axiom, provides a systematic analysis of mobilization strategy, and demonstrates how litigations seemingly upholding the “likes alike” equation bear the potential of being a driving force to challenge the very same equation.

Palazzo’s article engages with nonmarriage equality on empirical and normative levels, focusing on the fate and role of nonmarital statuses. Her core claim is simple and clear: nonmarital statuses ought not to become ashes along with the birth of same-sex marriage; instead, nonmarital statuses can and should assume the role of promoting a more pluralist model of relationship recognition and offering protection for “apostates” of the archetypical marital family. Rather than pursuing “transitional equality” to address vulnerabilities that may arise in the process of transitioning from a nonmarital status to marriage, Palazzo’s goal can be understood as advocacy for another kind of transitional equality: a framework for identifying the possibilities and necessities of retaining or creating nonmarital statuses during and after the transition to a world with same-sex marriage. This, in other words, is a request to resist the transition to a marriage-only world. Her particular emphasis in this article is nevertheless not same-sex couples’ refusal to transit their nonmarital status to marriage but opposite-sex couples’ demand to access nonmarital statuses.

Defined in this article as “all recognition models whereby two persons take affirmative steps to register their relationship and gain a bundle of legal benefits, rights, and obligations” (P. 3), nonmarital statuses can be distinguished into the “strong” and “weak” models in accordance with their proximity with marriage. The “strong” model resembles marriage except its label, exemplified by US civil unions, UK civil partnership, and registered partnership in the Netherlands. The “weak” model equips partners with some, but not all, of the rights and duties of the marriage package, exemplified by the pacte civil de solidarité (Pacs) in France and cohabitation légale in Belgium. Conventional wisdom has it that nonmarital statuses under both strong and weak models were historically designed and enacted to offer a temporary, transitional, and second-class protection for same-sex couples as compromises in lieu of “full” marriage equality, i.e., equality as the same treatment of opposite-sex and same-sex couples concerning marriage.

Understood as a manifestation of what Palazzo calls “the incrementalist paradigm or theory of small change” (P. 13), nonmarital statuses are often deemed useless, redundant, or even odious after the legalization of same-sex marriage. Their destiny, as what has happened in some US state laws, Ireland, Germany and Nordic countries, is to be phased out. (Pp. 15-16.) Echoing scholars who dissent from this conventional wisdom through alternative historical accounts of nonmarital statuses (initially pursued to embrace family pluralism) and normative arguments against marital supremacy, Palazzo questions the erasure of nonmarital statuses and further argues for their expansion in a world with same-sex marriage. Her adventure begins with an empirical account, followed by a normative account, and ends with a philosophical and legal analysis of three approaches to expand same-sex partnerships.

Palazzo’s empirical account directs our attention to the growing interest of modern families in nonmarital statuses, evidenced by the increase of Pacs created by opposite-sex couples in France, cohabitation légale declared by opposite-sex couples in Belgium, and opposite-sex registered partnerships in the Netherlands after the legalization of same-sex marriage in these countries. Her elaboration of this phenomenon concentrates on the attractiveness of nonmarital statuses for couples qualitatively different from the archetypical marital couple. As evidence from France has suggested, pacsés couples tend to be more liberal in terms of sexual practices, more egalitarian about gender norms, and more inclined to seek material benefits (e.g., keeping their finances separate, entering in to a less “traditional” financial arrangements) than symbolic recognition. (Pp. 20-22.) Couples who hold genuine objections to marriage (what Anne Barlow and Janet Smithson have dubbed the Ideologue couples) might prefer a strong model of nonmarital statuses over marriage when the major difference between the two is their symbolic labels. (P. 56.) This empirical account corresponds to Palazzo’s normative proposition that “nonmarital statuses are more attuned to the values of modern couples.” (P. 22.) Palazzo claims that in modern societies with egalitarian, secularizing, and individualism-driven trends, marriage does not pass muster: as an institution, it has roots in patriarchy and is not fully secularized; as a legal framework, it lacks flexibility; as an ideology, it is too “committing.”

The empirical facts and normative claims lay the ground for Palazzo’s core argument: nonmarital statuses deserve a fruitful future rather than a death knell. Again, she limits her deliberation to the availability of same-sex partnerships to opposite-sex couples. If this has not seemed to be a primary concern for American opposite-sex couples, it has begun to attract attention in Europe, where heterosexual couples have brought legal challenges in international and domestic courts. Palazzo identifies three main approaches: (1) a status recognition approach, which addresses the harms to opposite-sex couples as a group; (2) a utilitarian approach, which asserts the utilitarian values of the flexibility provided by nonmarital statuses; and (3) a legal-pluralistic approach, which claims the choice of nonmarital status itself is a value per se (“more is good”).

The status recognition approach concerns status recognition and the cultural harms of denying heterosexuals recognition through nonmarital statuses. The utilitarian approach emphasizes opposite-sex couples’ right to access nonmarital statuses due to their legally-relevant “need” for a more flexible legal regime other than marriage, whereas the legal-pluralistic approach celebrates legal pluralism and demands that “choices” or options in the menu of family regimes be made available to both same-sex and opposite-sex couples. Each approach has its upsides and downsides, which Palazzo carefully examines one by one, discussing their applicability in different institutional contexts. She acknowledges each approach’s advantages and limits, and comes to the conclusion that “there is no one-size-fits-all approach because nonmarital statuses differ in terms of their content, personal scope, or historical context in which they were enacted.” (P. 53.)

Steinfeld and Keidan v. Secretary of State for Education demonstrates the pros and cons of the status recognition and legal pluralistic approaches. The UK Supreme Court’s ruling adopts the legal-pluralistic approach and finds it discriminatory to grant same-sex couples two choices (marriage and civil partnership) while leaving opposite-sex couples with only one choice (marriage). Opposite-sex couples’ lack of choice is plain and simple discrimination in the form of different treatment, which proves the upsides of the legal-pluralistic approach. This view is, however, a partial reading of the case. Palazzo tracks down the original complaint and lower court decisions and finds signposts of the status recognition approach. The parties expressed their opposition to marriage and argued for the right to establish a family under a regime that would reflect and recognize the equal nature of their relationship.

The High Court and Court of Appeal accepted the discrimination argument and recognized that exclusion per se is the problem. The status-recognition approach has a clear advantage of stressing status-based harms, which nevertheless invite the question of whether discrimination law should be symmetrical (protecting a universal class of persons belonging to a specific category) or asymmetrical (protecting only the subordinate groups). In a world of heterosexual normativity, a heterosexual couple’s status-recognition claim may survive under the symmetrical discrimination theory but would be hard to sell under an asymmetrical one.

Ratzenböck and Seydl v. Austria, the 2017 European Court of Human Rights (ECtHR) case that was brought about by an Austrian heterosexual couple who sought to register for a civil partnership (the so-called Eingetragene Partnerschaf) in Austria when same-sex marriage was not legal, illustrates the utilitarian and the legal-pluralistic approaches. The couple expressed their opposition to marriage and demanded access to civil partnership, which, at the time when the case was before domestic courts, offered a more modern and “lighter” form of legal recognition (the weak model) that more aligned with their material interests. However, by the time the case reached the ECtHR, the legislature had significantly narrowed the gap between marriage and civil partnership, despite the remaining differences that made the civil partnership regime slightly more flexible compared to marriage. This change of law weakened the couple’s argument for a different and suitable option. In response to the applicants’ claim of discrimination based on sexual orientation, the Court conducted a comparative assessment, concluding that heterosexual couples were not in a comparable or relevantly similar situation to same-sex couples because the institutions of marriage and civil partnership were complementary in Austria law: opposite-sex couples could access marriage whereas same-sex couples were ineligible to marry and hence needed the recognition of civil partnership. Both the utilitarian approach and the legal-pluralistic approach failed in Ratzenböck. The Court identified no comparable similarity between heterosexual and same-sex couples, finding no “need” for the couple to access civil partnerships for legal recognition because they could access marriage. The Court’s claim that any formalized partnership will satisfy the European Convention on Human Rights (ECHR) also rendered the legal-pluralist approach unworkable under the ECHR framework.

Despite suggesting that there is no one-size-fits-all approach to expanding nonmarital statuses through litigation, Palazzo strives to produce guidelines for litigation strategies that can be applied in different settings. The work contains a particularly useful table classifying approaches to claiming equal partnerships. (P. 55.) She argues that the suitability of an approach in a particular context can be assessed according to the content of the nonmarital regime (whether it has distinct content or “mimics” marriage) and the approach’s elasticity/inelasticity to difference between marriage and the nonmarital status. Under a “weak” model of nonmarital statuses, all approaches can potentially apply. Under a “strong” model, the utilitarian approach can hardly work due to the similarity between marriage and nonmarital statutes, but the status-based and the legal-pluralistic approaches can be pressed by stressing a couple’s objection to marriage or arguing against the lack of “choice.”

Palazzo goes beyond litigation strategies to argue for the role of litigation as a vehicle for legal reform (exemplified by the widening of nonmarital legal status to all couples in UK and Austria in the aftermath of heterosexual couples’ litigation), stressing the need for creating nonmarital statuses that are meaningfully different from marriage to attract a large number of people, who might be driven by ideology, utilitarian ideals, or material interests. In a nutshell, heterosexual “marriage apostates” have a role in a post same-sex marriage world: bringing court challenges to disrupt the entrenchment of marital supremacy.

By identifying opposite-sex couples’ potential as an important vector for change through strategic litigation to expand nonmarital statuses, Palazzo sheds light on the path toward nonmarital equality after marriage equality. She demonstrates how a “likes alike” argument can facilitate the parties’ success in Steinfeld, and an “unlikes unlike” argument can lead to the parties’ defeat in Ratzenböck. Her work also suggests how opposite-sex couples’ demand for equal access to nonmarital statuses can be framed in ways other than embracing the “likes alike” equation and can express objections to the equation of marriage to equal citizenship (to be equal is to have the same right to marry) even when it appears to echo the sameness equation.

Indeed, an argument for same treatment may produce asymmetrical consequences: same-sex couples’ demand for the same right as heterosexual couples to marry risks conforming to heterosexual marital normativity despite its potential to transform marriage, whereas heterosexual couples’ request for the same right as same-sex couples to register for civil partnerships bears the potential of weakening marital supremacy and equalizing nonmarital statuses. For future thoughts, the status recognition approach may gain strength from the hierarchy-centered substantive equality theory if it can identify the role of marriage in the dynamics of hierarchy, and, in turn, claim the harms that the legal institution of marriage imposes on nonmarital people as a group despite marriage’s expansion to same-sex couples. So constructed, it would become an equality-based approach with a norm-challenging “risky argument” that can call attention to deeper problems underlining the legal institution of marriage and advocate a radical future for nonmarital equality.

Cite as: Chao-Ju Chen, Nonmarital Equality in a New Light, JOTWELL (January 13, 2022) (reviewing Nausica Palazzo, Marriage Apostates: Why Heterosexuals Seek Same-Sex Registered Partnerships, __ Colum. J. Gender & L. __ (forthcoming, 2022), available at SSRN), https://equality.jotwell.com/nonmarital-equality-in-a-new-light/.

Trumpism and Critical Contract Theory

  • Marissa Jackson Sow, Protect and Serve, __ Cal. L. Rev. __ (forthcoming, 2022), available at SSRN.
  • Marissa Jackson Sow, Whiteness as Contract, 78 Wash. Lee L. Rev. __ (forthcoming, 2021), available at SSRN.

In the waning days of Trump’s presidency, the far Right put Critical Race Theory in its crosshairs. In a flurry of executive orders and guidance documents, Trump tried to paint CRT as the cause of racial unrest in our nation. This move, which has since set off campaigns in state legislatures to outright ban CRT in public schools, is unsurprising. Trump and large swaths of his followers are white supremacists full-stop. As such, they see CRT as a threat to their racist agenda.

CRT does not cause “racial unrest,” sow racial hatred, and it is not now and has never been routinely taught in K–12 schools. Those seeking to literally outlaw CRT are not in any honest sense concerned with our youths’ minds or souls. Instead, they fear CRT’s capacity to shed light on how racial division has been and continues to be used to maintain white power. CRT is dangerous because the movement in the academe and in the streets seeks to transform the relationship between race, racism, and power. If the stakes weren’t so high right now, we might chuckle at how ridiculously Trumpian the far Right’s strategy is here. What more Trump move could there be than to claim CRT, which helps us dissect and discuss racism in sophisticated ways, is a bigger threat to our nation than racism itself.

Thankfully, in these troubling times, scholars like Marissa Jackson Sow, continue to build out and expand CRT discourse in new and innovative ways. My focus here is on two of Sow’s recent articles, Whiteness as Contract and Protect and Serve.

Sow positions both articles as part of a growing body of scholarship termed critical contract theory. Much as Cheryl Harris did in the early nineties with property law,1 Sow invites us to employ contract law as a lens and metaphor to discursively identify the emergence and sticking power of racial stratification in American politics and society, past and present.

The premise of Sow’s overarching project is most clearly articulated in Whiteness as Contract. There, Sow explains that antidiscrimination and human rights law frameworks too often obfuscate how and why structural and physical violence against “those raced as Black . . . endure[s] at the express direction of the state.” (P. 1.) Sow’s core insight here is that when racial groups’ relationships to the state are conceptualized in contractual terms, it is apparent that Blacks and other historically marginalized minorities are incapable of being parties to the social contract that sustains our nation, while, conversely, whites have secured contractual terms with the state that lock-out minorities from entering into the social contract, let alone benefit from its protections.

Protect and Serve takes critical contract theory to the next level, applying it to policing in the United States. Invoking the contract framework once again, Sow urges that the (aspirational) mandate that police “protect and serve” is, at best, illusory for Blacks and other historically marginalized minorities. Police are not, to Sow’s eye, charged with protecting all of us, but instead have historically—and continue to this day—to be charged with protecting the racial contract forged between whites and the state. As Sow explains,

Black people can do absolutely nothing to avoid being killed by police in the United States, because the United States is not in contract with them and because, in many cases, they are actually the objects of contract. Black people in the United States are excluded from the nation’s body politic intentionally and strategically, to more efficiently exploit their labor, extract their resources, and to remove them from physical spaces that local, state, and federal governments reserve for those citizens with whom it is contracting. Police, as vehicles of the state, are the enforcers of that exclusion. (Pp. 6-7.)

As was the case with Harris before her in property law, the elegance of Sow’s work in critical contract theory is a testament to CRT’s power to illuminate how and why racism continues to reverberate in our nation today.

  1. Cheryl I. Harris, Whiteness as Property, 106 Harv. L. Rev. 1707 (1993).
Ezra Young, Trumpism and Critical Contract Theory, JOTWELL (Dec. 7, 2021) (reviewing Marissa Jackson Sow, Protect and Serve, __ Cal. L. Rev. __ (forthcoming, 2022), available at SSRN.; Marissa Jackson Sow, Whiteness as Contract, 78 Wash. Lee L. Rev. __ (forthcoming, 2021), available at SSRN.), https://equality.jotwell.com/trumpism-and-critical-contract-theory.

The Timing is Perfect for Revolutionary Feminisms

Brenna Bhandar & Rafeef Ziadah, Revolutionary Feminisms (2020).

This edited collection came to press as many of us around the world “went home”. Spring (Canadian spring, at least) 2020 had become unfamiliarly quiet. There was so little traffic on the streets that I could hear the ice-maker in our fridge on the main floor producing ice even though my bedroom (on the second floor) door was closed.

Despite the quiet, those work-from-home days were chaotic and exhausting. My days were filled with one zoom meeting after another. As the Dean of a Faculty, I found myself making endless and ostensibly urgent and important decisions, only to change those decisions the next day. I imagined someone watching me “at work”. They would have watched a middle-aged woman, hunched over a small Ikea desk in the corner of her bedroom sitting quietly, but staring intensely, at a laptop screen for hours, periodically yelling loudly at the screen. My days were both filled with others and yet isolating and alienating.

Revolutionary Feminisms arrived in my regular mail slot at home in those (now obviously) early days. It shot through the mail slot in a moment when I badly needed something beyond the seeming urgency of the daily. Although it was almost impossible to shift gears in the dramatic way the book demands, it asked me (and us) to consider “the belief that freedom requires revolutionary transformation in the organisation of the economy, social relations, political structures, and psychic and symbolic worlds, and that this must take place across multiple scales—from intimate relations between individuals to those among individuals, communities and the state.” (P. 1.) That orientation was profoundly unfamiliar in those early days of the pandemic, and I think in spite of some sense of “opening up” in at least some regions around the world, it remains so.

There are so many things I want to tell you about this edited collection that reveal its subtle magic. Things that if not stated explicitly, can slide by you as a reader. I’ve noted the first, which was the timing of its publication. That was unintentional, but fortunate. How badly we needed work with long-term vision in this era of short-term urgency.

Second, the chapters in the work offer interviews with fascinating thinkers and scholars: Avtar Brah, Gail Lewis, Vron Ware, Himani Bannerji, Gary Kinsman, Leanne Betasamosake Simpson, Silvia Federici, Ruth Wilson Gilmore, Avery Gordon, and Angela Y. Davis. In reading the book, we are offered access to a series of related conversations—personal and intimate, political and reflective. The conversational format interrupts the inevitable self-involvement of this past year (Am I safe? Is my family safe?), and it invites us into something tentative and exploratory, rooted in experience and expertise. Conversations are such regular features of daily life, and yet the kinds of conversations reflected in this collection might remind you (as they reminded me) that the last 18 months has left us more desperate than we might yet know for conversations that ask us to think beyond ourselves and to engage with the potential for revolution that this era might offer.

Third, the edited collection offers a web of connections. I love when I’m reading something and the authors are linking people, places, and ideas that to me seem disparate and disconnected. Here the editors bring scholars, activists, social, political and economic movements, and critical theories and methods, into dialogue with each other. When authors do an artful job of creating webs of connections you don’t notice it’s happening—something that could easily be the case here. The editors have enough of a shared vision of the potential for revolutionary feminisms that they create a context for the interviews that feels like it makes perfect sense. But, of course, if someone asked me to connect Ella Baker (a figure in the US civil rights movement) with solidarity with Palestine, I would have more-than-paused. Or if they had asked me to link the defeat of fascism in Italy in the 1970s and 2020 framings of the unaddressed threat of climate change the kind of quiet that descended on my house (when I could hear the ice being made) would have been the result.

The interview portion of the work is divided into three broad themes: diaspora/migration/empire, colonialism/capitalism/resistance, and abolition feminism. Three or four interviews comprise each division. The interview-style makes the work both highly accessible and (perhaps contradicting that) unexpectedly dense. When you read each interview, you are diving into the pool of the knowledges of the interview and interviewee. At times, I was swimming in an ocean without reference points. But the conversation continues and if you can tolerate that sometimes those orienting reference points are gone (because at least speaking for myself, I entered these conversations without the same depth as the editors and interviewee), then you are in for a delight.

This is a book that went to press as many of us “went home”. It is perfectly crafted for this moment as we contemplate our re-emergence. And the contribution it makes—bold in its framing and focus—will shift how we understand feminisms and call on us to contemplate what our freedom entails.

Cite as: Kim Brooks, The Timing is Perfect for Revolutionary Feminisms, JOTWELL (November 8, 2021) (reviewing Brenna Bhandar & Rafeef Ziadah, Revolutionary Feminisms (2020)), https://equality.jotwell.com/the-timing-is-perfect-for-revolutionary-feminisms/.

Judging Gender

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.”1 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.2 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.3 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.”4

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)

  1. Julia Temple Newhook et al., A Critical Commentary on Follow-Up Studies and “Desistance” Theories About Transgender and Gender-Nonconforming Children, 19 Int’l J. Transgenderism 212, 212 (2018).
  2. Id. at 217.
  3. Houston at 143 (emphasis in original).
  4. Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14 (s. 3(c)(iii)).
Erez Aloni, Judging Gender, JOTWELL (September 13, 2021) (reviewing Marie-Amélie George, Exploring IdentityMarie-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). (2020)), https://equality.jotwell.com/judging-gender/.

Dancing Around Change: An Honest Engagement with the Perils of Performativity in Law School Hiring

Carliss N. Chatman & Najarian R. Peters, The Soft-Shoe and Shuffle of Law School Hiring Committee Practices, 69 UCLA L. Rev. Disc. 2 (2021).

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.”1 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.”2

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.’”3 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.

  1. Richard Chused, The Hiring and Retention of Minorities and Women on American Law School Faculties, 137 U. Penn L. Rev. 537, 538 (1988).
  2. Cedric J. Robinson, Black Marxism: the Making of the Black Radical Tradition xxvii (2005).
  3. Angela P. Harris, Love and Architecture: Race, Nation, and Gender Performances Inside and Outside of the United States, 52 Clev. St. L. Rev. 121 (2005).
Cite as: Saru Matambanadzo, Dancing Around Change: An Honest Engagement with the Perils of Performativity in Law School Hiring, JOTWELL (August 12, 2021) (reviewing Carliss N. Chatman & Najarian R. Peters, The Soft-Shoe and Shuffle of Law School Hiring Committee Practices, 69 UCLA L. Rev. Disc. 2 (2021)), https://equality.jotwell.com/dancing-around-change-an-honest-engagement-with-the-perils-of-performativity-in-law-school-hiring/.

The Everyday Struggles of Disability Law

Elizabeth F. Emens, Disability Admin: The Invisible Costs of Being Disabled 105 Minn. L. Rev. 2329 (2021).

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 Brooks1 and Ilan Meyer2 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.

  1. Virginia R. Brooks, Minority Stress and Lesbian Women (1981).
  2. Ilan H. Meyer, Minority Stress and Mental Health, 36 J. Health & Soc. Behav. 38 (1995).
Cite as: Doron Dorfman, The Everyday Struggles of Disability Law, JOTWELL (June 28, 2021) (reviewing Elizabeth F. Emens, Disability Admin: The Invisible Costs of Being Disabled 105 Minn. L. Rev. 2329 (2021)), https://equality.jotwell.com/the-everyday-struggles-of-disability-law/.

Update of Jotwell Mailing Lists

Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.

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.

The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.

The Quotidian and Constitutive Practice of Police Brutality Against Indigenous People

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.

Cite as: Elaine Craig, The Quotidian and Constitutive Practice of Police Brutality Against Indigenous People, JOTWELL (May 27, 2021) (reviewing Sherene Razack, Settler Colonialism, Policing and Racial Terror: The Police Shooting of Loreal Tsingine, 28 Feminist Legal Stud. 1 (2020)), https://equality.jotwell.com/the-quotidian-and-constitutive-practice-of-police-brutality-against-indigenous-people/.

Legal Human Humility: Contending with the Representation of Trees and Other “Nature” Beings

Alyse Bertenthal, Standing Up for Trees: Rethinking Representation in a Multispecies Context, 32 L. & Literature 355 (2020).

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.1 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.2 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.3 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.

  1. Kallis v. Sones, 208 Cal.App.4th 1274 (2012).
  2. It is worth noting that Dr. Seuss’ works have been criticized for their exclusionary tropes, and Dr. Seuss Enterprises has recently announced that 6 books will cease to be published due to racist imagery. The Lorax is not in this list and, as Bertenthal notes, has received acclaim as a pro-environmental text.
  3. Why We Love and Exploit Animals: Bridging Insights from Academia and Advocacy (Kristof Dhont & Gordon Hodson eds., 2020).
Cite as: Maneesha Deckha, Legal Human Humility: Contending with the Representation of Trees and Other “Nature” Beings, JOTWELL (April 29, 2021) (reviewing Alyse Bertenthal, Standing Up for Trees: Rethinking Representation in a Multispecies Context, 32 L. & Literature 355 (2020)), https://equality.jotwell.com/legal-human-humility-contending-with-the-representation-of-trees-and-other-nature-beings/.

Uncovering the Little-Known History of Suffragists of Color

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).1 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.

  1. The Turtle Mountain Chippewa Tribe is comprised of Anishinaabe and Métis peoples and is located within the boundaries of North Dakota. See “Tawnshi! Welcome,” Chippewa Heritage, available at http://www.chippewaheritage.com/.
Cite as: Ann E. Tweedy, Uncovering the Little-Known History of Suffragists of Color, JOTWELL (March 25, 2021) (reviewing Cathleen D. Cahill, Recasting the Vote: How Women of Color Transformed the Suffrage Movement (2020)), https://equality.jotwell.com/uncovering-the-little-known-history-of-suffragists-of-color/.