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.
Asad Rahim, Diversity to Deradicalize
, available at SSRN
It is difficult to say anything new about affirmative action. Scholars have analyzed the effect of affirmative action on white students and on people of color through the lenses of many disciplines. They have considered the philosophical consequences of a system that takes account of race in comparison to one that is race blind. They have asked whether a system can be race blind. Perhaps more than any other topic, scholars have exhaustively discussed diversity. The focus is not surprising, given that diversity is the only rationale for affirmative action that will withstand strict scrutiny, absent a narrow exception for institutions attempting to remedy their own past discrimination. But to offer anything new about diversity is a difficult task.
Despite the rich work already available, in Diversity to Deradicalize Asad Rahim offers a provocative and novel addition to the affirmative action canon. His sharp look at Bakke and diversity hones in on the father of the diversity rationale, Justice Lewis Powell. Justice Powell’s solo concurrence in Bakke v. Regents of the University of California first articulated the diversity rationale for lower courts and institutions of higher learning. Powell’s opinion has drawn praise and criticism. Some saw it as a unifying opinion that furthered racial harmony by demonstrating that integration is good for those of all races. Others have criticized the diversity rationale for affirmative action as ahistorical, ignoring centuries of racial injustice in favor of a rationale that emphasized what people of color could do for white people. Whatever their beliefs, litigants have found themselves advocating forcefully for the merits of diversity in order to preserve affirmative action at state schools.
Rahim’s paper calls into question a critical component of this narrative: that Justice Powell was motivated by integrationist aims. By examining speeches, personal notes, and other writings from Powell’s archives that offer insight into his racial views, Rahim undermines the received wisdom that Powell was a segregationist prior to his appointment to the Supreme Court, but that he became an integrationist during his time on the bench. He demonstrates “significant continuity” between Powell’s “views before he joined the Court and the way he voted as a Justice on key cases involving race and education during his tenure.” In the big picture, Rahim concludes, “Justice Powell spent considerable jurisprudential effort to limit the reach and effectiveness of racial integration.”
If racial integration did not account for Justice Powell’s embrace of diversity in his Bakke concurrence, what did? This is where Rahim’s work really shines. He advances a fascinating new explanation: Justice Powell grew attracted to the idea of diversity because he feared radicalism. He believed that institutions of higher education were the site of radicalization for college students, who were targeted by radicals intent upon “infiltrat[ing] American universities in order to ‘brainwash’ the nation’s future leaders with anti-American propaganda.” Powell’s fears were stoked by waves of campus protests during the 1960s and 1970s. Importantly, however, Powell did not see radicals as predominantly non-white. Rather, he argued, “[t]he most visible element of the revolutionary movement is basically white and campus oriented.” Diversity, he believed, would serve as an antidote to such radicalization. But not just any diversity: the kind of intellectual diversity that would serve as a counterweight to the “new left” and moderate the radical forces on campus. This fascinating look into Justice Powell’s thinking explains why, for example, he quoted with approval Harvard’s statement that “[a] farm boy from Idaho can bring something to Harvard College that a Bostonian cannot offer.” Yes, diversity could include race, but mostly it was about neutralizing leftist forces.
Rahim’s work really made me think. For this race scholar who has been writing (sometimes wearily) about diversity for fifteen years, Diversity to Deradicalize brought new life. I liked it a lot.
Equality scholars in law often concentrate on constitutional or other legislated equality protections, analyzing how they are applied and interpreted, and evaluating their impact. But this can have the effect of allowing law to narrow the places in which equality questions are seen as relevant. In Beyond Airspace Safety: A Feminist Perspective on Drone Privacy Regulation, Kristen Thomasen brings together emergent technologies, legal questions, and social context in interrogating the gendered implications of the way privacy is framed and regulated.
Professor Thomasen problematizes the safety-oriented development of North American drone regulation, by reference to feminist critiques of approaches to privacy in western law and philosophy. She carefully articulates the ways in which drone technology is not value neutral (noticing a variety of ways in which mainstream discourse has tended to assume that the newness of the technology designates it as a per se good). Instead, she focuses on the salient features of this particular technology – that it flies, that it can carry a variety of payloads, that it is separated from the operator, and that it is relatively low-cost. She is concerned that the technology be carefully set into the particular, existing, and gendered, context. Unfortunately, she contends, neither public discourses nor the work of regulatory agencies show evidence of this kind of approach.
The article thus uses of a wide variety of material and techniques in making the case for attention to gender in regulation of new technology and drones in particular. Thomasen argues that there is a culturally unsurprising but profoundly unhelpful focus on how drone technology might invade the privacy of women and girls in private spaces, with relatively little attention to the potentially significant problems arising from surveillance in public spaces. This fixation on relatively prurient fact scenarios, noted and named the “sunbathing teenager narrative” by Professor Margot Kaminski in a 2016 Slate article, tracks the way that women’s privacy is usually considered under the rubric of modesty rather than other potential conceptualizations of the importance and meaning of privacy. Thomasen then works to illustrate how interpretations of privacy in law continue to focus on modesty, and the gendered implications of this focus. (P. 312.)
As in so much feminist scholarship, the notion of the public/private divide is of central significance to Thomasen’s work. Using Anita Allen’s work, Thomasen focuses on the question of privacy in public – not raised by the popular “sunbathing teenager narrative” – arguing:
“[E]xisting conditions of inequality will impact and be impacted by the development and adoption of new technologies like the drone….it is necessary to consider how the technology might impact that social context–and how that social context might (or should) impact the development and regulation of the technology . . . .” (P. 322.)
The paper then turns to the question of what Thomasen identifies as a North American approach to drone regulation, arguing that the value neutrality of that approach limits awareness and acknowledgment of the impact of technologies on individuals and communities:
“Regulations . . . focus on regulating the artefact (the ‘drone’ as an unmanned vehicle that takes to the airspace), rather than how it integrates into society. Accordingly, the particular politics embodied in the technology remain largely unaddressed.” (Pp. 333-34.)
Thomasen finishes by offering recommendations for regulation of drones, within the “safety” framework, while recognizing that the underlying issues she identifies go far beyond drones and their regulation.
Read this paper. The writing is lovely and the paper is a good read, belying the amount of analytical work it contains. It offers an important contribution to feminist work on privacy and the public/private divide as well as to work on technology (it was published in a Canadian law and technology journal). It also illustrates what careful critical attention to the implications of new technologies requires, and the value of this kind of work. Looking into the legal future frequently requires a careful look to the legal past, for instance. The uses to which a new technology can be put should not be confined to those hyped by designers and vendors. And equality is not a concept that should be relegated to designated legal spaces where it is central and welcome.
Iselin Gambert and Tobias Linné, Got Mylk?: The Disruptive Possibilities of Plant Milk
, 84 Brook. L. Rev.
__ (forthcoming 2019), available on SSRN
It’s time to consider whether the milk on our cereal or granola, or in our coffee or tea, is an agent of inequality. Gambert and Linné in their compelling article, Got Mylk?: The disruptive possibilities of plant milk, confront “Dairy Pride” and argue that it operates as a tool of oppression along several axes. They use multiple lenses of equality including capitalism, speciesism, sexism, and racism to analyze milk as reality and symbol.
Perhaps the most obvious equality lens they discuss is the capitalist one of big business and consumers. The so-called “Milk Wars” arise from a Food and Drug Administration (FDA) regulation that defines milk only as “the lacteal secretion, practically free from colostrum, obtained by the complete milking of one or more healthy cows.” (P. 5.) This excludes all forms of plant milk that have been in use for centuries such as soymilk, coconut milk, and various forms of nut milk, as well as goat and sheep milk. The increasing popularity of plant-based milk has led to FDA warning letters and some lawsuits seeking to stop plant-based milk from using the term “milk.” The proposed DAIRY PRIDE Act (“Defending Against Imitations and Replacements of Yogurt, Milk, and Cheese to Promote Regular Intake of Dairy Everyday” Act), broadens the definition of milk as derived from “hooved mammals,” but would mandate more severe restrictions on the use of the word “milk” in plant-based contexts. (P. 20.) Meanwhile, as Gambert and Linné explain, in Europe litigation over “post-milk” oat beverages such as the Swedish dairy industry suing the “Oatly” company, have perhaps made oat drinks more popular. The comparative United States and European discussions are a marked strength of the article. (P. 40.)
This business and consumer lens on equality in milk definitions and production forms the basis for the other equality lenses that Gambert and Linné deploy. They demonstrate how the “Milk Wars” are inflected with speciesism, sexism, and racism. They show how the regulatory terrain is the site of several overlapping cultural battles around the globe.
Milk, they argue, is “the ultimate feminized tool of exploitation in a patriarchal world.” (P. 49.) Reflecting on the use of the verb “[to] milk” as meaning “to exploit,” they connect legal usages to cultural and scholarly works that consider milk as “symbolically and literally used as a tool of exploitation and regulation of human and nonhuman female bodies alike.” (P. 50.) They connect speciesism and feminism, agreeing with scholars who argue that “the issues underlying the control of both animal and human milk-producers are analogous.” (P. 51.) They make further connections to racism and colonialism, contending that “the colonial practices of multinational First World food and dairy corporations when introducing dairy based infant formula in developing countries have had ‘devastating effects on mothers and children, cows and calves, rural poor and small dairy farmers.’” (P. 51.) And then there is the historical practice of wet-nursing, using human milk, with its class and racial inflections, as well as its modern turns in the selling of “mother’s milk” or even ice-cream made from human milk.
The article also explores milk as identified with whiteness. The authors delve into the genetic disparities with regard to milk’s digestibility in adults, a condition known as “lactase persistence,” and note that “dairy milk remains today a central fixture of Western culture despite a majority of people of color not being able to digest it.” (Pp. 54-55.) This biology is then refracted with notions of white supremacy (milk as a perfect food for perfect people). Interestingly, the article includes a discussion of milk as a symbol of white power by members of the so-called alt-right.
The proposed solution of Gambert and Linné is an incident of “verbal activism” that would supplant the problematic “milk” with a more liberatory “mylk.” (P. 3.) The term “mylk,” they state, “already has a long history within the vegan community of signifying plant milk.” (P. 71.) Even as the authors recognize a new word will not solve everything — cashew and soy farming practices are not necessarily more labor-friendly than dairy farming practices; plant-based “mylk” might continue to be more expensive than dairy milk if subsidies do not end — they contend “mylk” would be a step towards a world of more equality. Certainly something to think about over breakfast.
Editor’s note: Prof. Robson wrote the above based on a 2018 draft. Since then, Prof. Gambert revised the article and Tobias Linné dropped off as co-author due to conflicts in his schedule that prohibited him from working on the article. The version now online at SSRN, and due to be published in the Brooklyn Law Review, reflects these changes.
Most academics who care about substantive equality accept that ideologies and attendant violence about which lives matter in society and which lives don’t cause devastation and trauma to individuals and communities. Many of us write about such suffering in our work so that others can learn about it and push for law reform and social change. But how exactly we as academics can bear witness to this suffering in the course of our equality-inspired, change-seeking research and writing is not a frequent point of discussion. But it should be, especially when the suffering we write about is chronic, of staggering magnitude, largely incommunicable, and sanctioned by law.
Anyone looking for an excellent example of how to bear witness to ongoing violence as a researcher—and learning along the way about the structural violence inherent to the dairy industry—should pick up Kathryn Gillespie’s The Cow with Eartag #1389. In it, feminist and critical animal studies geographer Gillespie eloquently bears witness to the massive yet mundane suffering engendered by the human appropriation of cows’ milk. Gillespie deeply cares about the plight of all farmed animals and the vulnerable humans exploited in agriculture, but has chosen to focus her critical lens on the dairy industry. She aptly defends her focus noting that milk is a substance produced by an industry whose workings “is obscured from public knowledge”, but is a product so normalized for humans to drink that “many well-educated and thoughtful people” are “surprised to discover that a cow has to be regularly impregnated to produce milk” (P. 14).
Through discourse analysis, participant-observation, interviews, library research, and stories about individual animals she encounters, Gillespie offers the reader a rare comprehensive and embodied account of the multiple components of the workings of the US dairy industry and how it takes living beings and turns them into things. Drawing from an intersectional feminist care-based ethic, Gillespie considers the routine structural violence that infuses the day-to-day practices of an industry that, from birth to death and thereafter, so completely commodifies the cow, her children, and her reproductive capacities under capitalist logics. Each illuminating chapter discusses a specific aspect of the dairy industry and “other peripherally related industries” such as the veal and beef industries it generates; other chapters innovatively explore the ethics of sanctuary spaces and 4-H agricultural education programs for children. Throughout, the analysis shines in integrating personal narrative with academic research to present an absorbing critique of what the law permits humans to do to animals even when so-called best practices are voluntarily adopted.
The contributions above to the burgeoning critical literature on animal agriculture constitute reason alone to read Gillespie’s book. But it is how Gillespie bears witness to the experiences of animals she encounters that is particularly noteworthy. One of the most eye-opening parts of the analysis for any reader will be Gillespie’s account of the auctions that take place as part of the animals’ commodified trajectories. Given the near impossibility for members of the public to visit animal agriculture enterprises to observe their practices, buttressed by a legal climate where attempts at undercover exposés are classified as terrorism (Pp. 38-40), Gillespie highlights the auction hall as one point in the otherwise hidden world of farmed animals’ lives where the public is invited. In Chapters 4 and 5, Gillespie describes her experiences sitting in on dairy auctions and, most brutally, the cull market auctions. I treasured these chapters for the rare glimpse they offered into what transpires in such spaces and for her candour in discussing what she thought and felt as she sat and observed for purposes of her research the parade of suffering animals that were auctioned off in front of her.
Indeed, it is while observing the cull market auction that Gillespie meets the book’s eponymous figure, one of the “spent” dairy cows who is meant to sell for cents on the pound to those who wish to transform her into meat. As Gillespie tells us, this is an animal who “limped through the door into the ring” and “whose impacts of her life as a commodity producer were easily legible on her body” (P. 96). This cow attracted no bids, and as the handler herded her toward the exit, she collapsed on the stage while the auction continued around her, “her mouth foaming with saliva and her breathing labored” (P. 97).
Gillespie writes about how her “mind raced with frenzied thoughts” about whether she should buy the cow, how she would transport and house her if she did, and “(w)hy this cow and not the dozens of others I had watched pass through the ring?” (P. 97), an experience she earlier describes as “immediately overwhelm(ing)” making her “unable to focus on each individual animal because of the scale of the suffering, each devastated body blurring into the next” (P. 96). She tells us of how her failure to intervene haunted her for “months afterward” and motivated her to produce a dissertation that “would be read both within and outside of the academy, with the hope of making an impact on the way people think about, and practice, our relationships with farmed animals” (Pp. 97-98).
Elsewhere, Gillespie has written about the embodied and empathic practice of bearing witness in doing academic work in spaces of violence and trauma. Her book provides an even fuller account of what bearing witness can look like when we seek to problematize legalized violence as academics in pursuit of justice. Her last chapter is aptly titled “On Knowing and Responding”, where she talks candidly about the difficulty of personal dietary change yet the pressing need for it to occur. As she has done throughout the work, Gillespie brings us back to the animals’ experiences, articulating the hope that “it is possible to learn from them, to let their stories be instructive as to how human-animal relations might be radically reimagined” (P. 219). Gillespie is not a legal scholar, but her work is of relevance to all of us in law pressing for equality in “radical” ways and encountering the extreme suffering of others whose lives we hope will one day matter.
In 1846, prison administrators at the Kingston Penitentiary replaced the daily whipping and flogging of prisoners with a new form punishment – The Box. The Box, as Ted McCoy describes it in his new book, Four Unruly Women: Stories of Incarceration and Resistance from Canada’s Most Notorious Prison, was a six foot tall, three foot deep coffin used to impose a form of extreme isolation on unruly prisoners. The Box became the primary form of severe punishment for women prisons at Kingston when flogging was abolished.
Four Unruly Women depicts a shocking portrait of the cruelty and inhumanity imposed upon the women imprisoned in Kingston Penitentiary between 1835 and 1935. McCoy also tells a powerful story about the incredible courage exhibited by women prisoners who resisted the practices of system oppression and patriarchy relied upon to structure the carceral environment in which they were imprisoned. In addition to floggings and extreme isolation these women were placed in dungeons, starved and, of course, sexually assaulted.
The book begins in 1848 with a story from Bridget Donnelly’s imprisonment in Kingston Penitentiary. Donnelly spent much of her adult life there. As McCoy notes in his opening paragraphs, Donnelly spent time in Kingston Prison during the same period in which the much more well-known prisoner Grace Marks (the subject of Margaret Atwood’s historical fiction novel Alias Grace) was imprisoned there. Donnelly entered the prison at age 18 in 1838 and was released for the last time more than forty years later in 1879. Bridget, McCoy writes, “was one of the forgotten” (P. 1). Chapter 2 explores the story of Charlotte Reveille, whose mistreatment sparked debate in mid-19th century Canada about excessive punishment, criminality, sexuality and medicine. In Chapter 3 he turns to Kate Slattery who entered Kingston Penitentiary in 1890 having been convicted for breaking windows. His fourth chapter examines the imprisonment of Emily Boyle between 1926 and 1934. Boyle served two terms of imprisonment and was pregnant during both sentences. McCoy demonstrates how during this era women prisoners in Boyle’s circumstances managed to deploy reform ideologies premised on maternal ideals prevalent at the time as a strategy of survival and resistance.
Four Unruly Women is a disturbing but captivating read. It is academically rigorous and compellingly written. Consider the following four exceptional features of this book:
Four Unruly Women documents the inhumanity suffered by these four individual unruly women. However, the book very effectively weaves the particularity of their stories into a much broader critique of the inextricable connection between social marginalization, poverty, classism, sexism and the modern state’s conceptions of punishment, reform and criminality.
Second, one of this book’s most important contributions is its focus on the history of women’s incarceration in Canada. As McCoy observes, “legal historians in Canada have largely ignored the experiences of incarcerated women” (P. 1). This gap, McCoy suggests, obscures a full understanding of the true nature of the modern penitentiary.
Third, Four Unruly Women, is laudable for its methodological approach and meticulous research. McCoy relies upon multiple recorded sources to piece together the stories of these women. He examines prison disciplinary reports, punishment registers, wardens’ reports and other official penitentiary reports, medical records, and testimony from the penal reform commission conducted between 1849 and 1850 – aggregating the information across months, years and decades in order to provide a more robust depiction of what occurred and why.
Fourth, and perhaps most important, is the book’s focus on the remarkable resistance demonstrated by these women. As McCoy notes in his introduction, he chose these four women in particular because they truly were the unruly and unmanageable. Far from an account simply of the victimization suffered by these imprisoned women, this book is an acknowledgement of the ways in which their resistance to the oppression they faced helped to shift and inform understandings of punishment and criminality.
Jessica A. Clarke, They, Them and Theirs, 132 Harv. L. Rev. 894 (2019).
Professor Jessica Clarke‘s law review article, They, Them, and Theirs, published this year in the Harvard Law Review, does important work in conceptualizing ways that anti-discrimination and other laws can change to accommodate non-binary people. This piece adds significantly to the emerging body of legal scholarship concerning non-binary persons, including such projects as The Future of Legal Gender: A Critical Law Reform Project, in the UK, and Ontario Human Rights Commission: Backgrounder – Talking about Gender Identity and Gender Expression in Canada. One of the most interesting aspects of Professor Clarke’s approach is her rejection of a one-size-fits-all solution in favor of a more contextual and pluralistic set of solutions.
As Professor Clarke explains, non-binary persons pose special challenges for the existing legal framework of anti-discrimination law, although, as she suggests, none of these challenges is insurmountable. One example of such a challenge is that non-binary identity disrupts the common transgender rights narrative that a transgender person is simply trapped in the wrong body. Such a narrative can sometimes fit comfortably in anti-discrimination law frameworks in the sense that the narrative seems to mesh nicely with the decades-old case law prohibition on stereotyping based on sex. Like the gruff, cursing plaintiff in Price Waterhouse v. Hopkins, who did not fit with stereotypical notions of womanhood espoused by the male partners in the accounting firm that employed her, the transgender person who was born a man but identifies as a woman may be perceived as not quite fitting with traditional notions of what it means to be a woman, and the discrimination against her in a work context may thus be seen as actionable under employment discrimination laws like Title VII. The non-binary person’s claim is harder to categorize because the discrimination they face is usually not so easily traced back to stereotyped ideas as to the gender that women (or men) are expected to perform. Posing issues similar to those posed by bisexuality in some contexts, with a non-binary person, the comparator (who must be proven to have been more favorably treated in traditional discrimination law) may be unclear. However, this problem dissipates if one looks to how gender-binary persons are treated in a workplace compared to non-binary persons, instead of trying to sort out whether the non-binary person’s treatment should be compared to that of women or men.
Given the significant numbers of persons who identify as non-binary and the fact that eight states currently permit non-binary gender designations on at least some identification documents, the need to deal with these challenges is sure to heighten. The article does a good job explaining how non-binary status relates to transgender identity—it is often seen to fit under the transgender umbrella, although some non-binary people do not identify as transgender—as well as how it relates to intersex status. In the latter case, there is overlap between the groups of intersex and non-binary persons but they are not co-extensive.
The importance of changing the law or, at a minimum, legal interpretations to accommodate non-binary persons is demonstrated by Professor Clarke’s discussion of the particular mental health risks that non-binary persons face due, most likely, to stigmatization and marginalization. She notes that “[b]ias against non-binary people often takes the form of disbelief, disregard, disrespect, and paternalism” (P. 910).
As Professor Clarke mentions, even defining non-binary genders can be challenging, as there are many variations, including rejection of the concept of gender altogether and hybridity or the melding of different gender roles into unconventional combinations, among many others. She argues persuasively that, after the de-emphasis of gender wrought by Obergefell v. Hodges and given the Supreme Court’s mistrust of classifications based on sex, there are not many contexts left in which the law requires an overarching definition of sex or gender. These developments, have, she argues, paved the way for legal recognition of non-binary rights.
Professor Clarke discusses various possible solutions to the law’s current lack of recognition of non-binary persons in most contexts (although Obama-era Title VII regulations did cover non-binary persons). Among the potentially most promising of her solutions are recognition of a third gender category, which states like Oregon and California have already done in the identification context, and neutrality in the form of anti-classification based on sex, although, as Professor Clarke acknowledges, each possible solution has drawbacks. For instance, recognizing a third gender can be limiting given the extremely wide variety of gender expressions that exist, and, further, a third gender solution does not accommodate those that see themselves as having no gender at all.
After discussing several possible solutions, and quite a few variations within them, Professor Clarke addresses how they might apply in legal subject areas, such as identification laws, anti-discrimination laws, sex-specific rules and programs, sex-segregated spaces, and healthcare. She argues the best solution varies by context. For instance, she sees recognition of a third gender as the best option for identification documents and the laws governing them, whereas she sees anti-discrimination law as better able to accommodate and respect the numerous—or possibly infinite—variations in gender identity among non-binary persons. Professor Clarke compares the diversity of gender identities to that of religious beliefs, arguing that anti-discrimination law quite successfully has managed to protect the numerous varieties of religious belief. She rebuts the concern that using the wrong pronoun accidentally could subject an employer to liability by noting that it would only be repeated, intentional acts of disrespect that would rise to the level of actionability.
All in all, They, Them, and Theirs is an excellent piece of scholarship that is a must read for those interested in gender, sexuality and law. And beyond that context, the article provides an interesting exploration of how the law can accommodate diversity without stifling it in the name of efficiency and administrability. I am heartened by Professor Clarke’s conviction that such an accommodation is possible.
Feminist judgments projects originate in Canada. The initial Canadian project saw six equality decisions rewritten by ten women. The aim: to see if equality under the Canadian Charter of Rights and Freedoms would be interpreted and applied differently if feminists were authoring the decisions. Since that time, projects have proliferated, with volumes produced in England and Wales (Margaret Davies reviewed that volume in Jotwell in 2012), Australia, the United States, Ireland and Northern Ireland, and Aotearoa New Zealand. The Canadians enjoy the exercise of rewriting equality judgments enough to have offered a second cluster of decisions last year. And new volumes are expected from jurists in Africa, India, and on International Law.
The first volume of American re-writes focused on decisions of the US Supreme Court. Surprising only to people who do not teach tax, the next volume of American re-writes takes up tax opinions. Released on December 28, 2017, as an invitation to continue holiday festivities, a volume edited by Bridget Crawford and Anthony Infanti serves up a veritable buffet of delights. Eleven rewritten American tax opinions comprise the volume. Six are rewritten Supreme Court decisions, one if a rewritten federal circuit court opinion, and four are rewritten Tax Court opinions.
The end result is spectacular. I want to draw attention to two features in this short review. These features are not tied, given this more general audience, to the tax context of the decisions. That’s worth underlining: this is a volume that is worth reading for scholars in any area of law with an interest in feminist legal theory and practice and how feminists approach legal and factual questions.
First, and worth emulating, each judgment is preceded by a commentary. The commentaries are designed to set context for the judgment. The authors of the commentaries were charged with explaining the original court decision, identifying how the rewritten judgement varies from it, and articulating how the feminist approach may have led to a different result. This context allows a non-American, or non-tax reader to make sense of the decision that following, enhancing the potential audience for the decisions. It also liberates the authors of the judgments to focus on what a re-written judgment would look like, without also trying to signal how their decision is at variance with the original. The commentaries in this volume don’t serve as introductions or cheerleaders for the main event: they work collaborative with the re-written judgment in a duet.
Second, the decisions themselves serve as terrific source material. I could imagine a volume on this volume. The decisions allow us to ask questions like: What makes the decision feminist? If a judge adopts a feminist approach, what changes? Do they interpreting statutes differently? Weight facts in unexpected ways? Use different kinds of reference materials to support their reasoning? Situate the decision in different contexts? Do feminists bring different higher-order values to the exercise of making decisions in tax cases? Is their approach to judicial authorship different?
The judgments in this volume, set within the specificity of tax law, suggest the answer to these questions is “yes.”
Feminism in the Global North began as a critical social movement emphasizing the societal oppression and exclusion of women and the inadequacies of the patriarchal state. Since the 1960s, it has evolved into a fragmented constellation of groups and theoretical positions often with deep divergences and seemingly intractable disagreements. One of these disagreements has been about feminism’s relationship to the state. Some feminists have traditionally been uncomfortable with and wary of institutional political power. And for good reason. Alliances with a patriarchal state produces only limited success with considerable costs. Other feminists have taken the position that we must take what we can get. In order to improve the lives of women, we must engage the state—become insiders and change the structure from within.
Regardless of how feminists orient to the state, most commonly recognize that state-alliances invariably result in mixed results often with unintended and undesired consequences. Often the gains benefit elite women at the expense of minorities. Furthermore, engagement with the state and the use of state power can present problems if one takes the position that generally feminism is a politics and a project that promotes liberation and equality. For example, the critical feminist literature on mass incarceration points out that the use of criminal law and state apparatus has resulted in the disproportionate incarceration of men of color. This has resulted in serious consequence for women by destroying many families and communities of color. Furthermore, gender neutral applications of criminal law have sometimes led to the policing of women themselves.
Darren Rosenblum’s essay, Sex Quotas and Burkini Bans, is part of this critical literature raising important questions about feminist alliances with and uses of state power in France. Rosenblum’s article adds to the literature by exploring state uses of and, indeed, promulgation of a “state feminism.” Rosenblum traces the feminist movement for equal political representation (Parité). With the passage of Parité giving women a 50% quota, the state absorbed the “feminist interest in sex difference and women’s equality” making it a core state value. And then, as Rosenblum shows, these ideas “disappear in plain sight.” (P. 470.) The state, having incorporated a feminist position on equality, used it to exclude certain categories of women.
The central contribution of the essay is the juxtaposition of Muslim exclusion with elite/mainstream inclusion that demonstrates the way that a patriarchal state can (ab)use feminism. In this case, feminism comes in handy to discipline a beleaguered minority further marginalizing its women through the very language of equality and rights and the construction of freedom itself. The state, with the help of some prominent feminists (and feminist groups like Ni Poutes, Ni Soumises), established its feminist credibility through arguing that in order to achieve equality, Muslim women must be assisted out of their patriarchal religion, out of their seclusion behind the veil, and into the public sphere where they can be seen to participate.
According to the proponents of the veil ban, the law reflects a commitment to feminist principles. Of course, as Rosenblum notes, there were feminists on the other side of the debates on the headscarf as well. These outsider feminists pointed out the irony of being forced into the state’s notion of freedom and the oddity of having liberty defined and imposed. Muslim women are required to conform as a condition of belonging even while their unsurmountable difference is used to exclude them from the mainstream. “Unenumerated Muslim minorities remained subject to socio-economic exclusion and restrictions on their self-expression.” (P. 481.)
Having successfully absorbed and deployed the feminist arguments about Parité, the state then consolidated its commitment to what I would call “exclusionary equality.”
The CBQ’s [corporate board quota] passage marks a historical moment when feminist ideas of women’s inclusion became such a fundamental part of public norms that feminists were not needed to make the argument: it was feminist influence rather than feminist activism. As feminist ideas disappeared in plain sight with the veil and burqa debates, here they became intrinsic to the very definition of French democracy. After the CBQ, related regulations advanced sex equality throughout French elites in government, education, and other areas of society (P. 486.)
Politicians like Nicolas Sarkozy were able to assert their brand of feminism promoting women into the rarified circles of capitalist power while controlling the bodies of marginalized minority women “for their own good.” In other words, as Rosenblum shows, state feminism is used to legitimize both inclusion and exclusion in a coordinated double-move.
In the final section of the essay, Rosenblum connects the earlier arguments regarding the headscarf/burqa to the more recent attempts at banning the burkini. The state, now well practiced in the art of deploying feminist equality arguments, extended these to the burkini—a body-covering swim garment worn by a small minority of Muslim women beachgoers. The very substance and content of what it means to be a free French woman is determined by dominant franco-francais gender norms and performance. Both the state and the feminist proponents of Muslim dress bans came together to reprise the arguments about the meaning of the headscarf, the burqa, and the burkini. Resolving all longstanding debates among Muslims, they imposed their own meaning of these garments in essentialist and immutable terms: to cover is to be oppressed. For some feminists, the use of state power, the adoption, of feminism by the state was a victory in the march to women’s equality. But for those Muslim women who wear headscarves or burkas and on whose bodies the debates played out, it was not liberty or freedom that was experienced but oppression.
Rosenblum’s essay reminds us that there are costs when feminism becomes institutionalized and part of the state. State feminism has its own agenda that may reflect only a small, elite, set of feminist goals. And achieving these goals may exacerbate the divisions among different groups of women. In France, exclusionary equality benefits those who are already privileged while reinforcing the marginalization of Muslim women. Rosenblum’s essay suggests that once entangled with the state, some forms of feminism can become the master’s tool for exclusion rather than inclusion and wielded against subordinated groups of women in a manner that is inconsistent with feminisms general ideals of equality and liberty.
The notion of property enshrined in the American legal system is a poor fit for what scholars have termed cultural property—tangible and intangible items of great importance to tribal cultural heritage. As Chante Westmoreland deftly reveals in her Note, An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age, property law addresses only some of the concerns associated with cultural items of significance to tribes. Property law is designed to protect the object itself, but tribes are often concerned not only with an actual object, but also with the cultural and spiritual significance of the item. (In order to track Westmoreland’s own language, I will use the word “tribe” or “tribal” to refer to people indigenous to what is now the United States. Other scholars might use the words indigenous, Native American, Indian, or their variants. The choice of language is a vital conversation, but one I will not take up in this short review.)
Of particular importance today—when it sometimes seems that everyone wants to make everything available on the Internet—are the new problems associated with digitization of important tribal artifacts. Westmoreland offers a balanced account of the benefits and problems associated with digitization. On the one hand, digitization enables what some have called a “museum without walls”—an opportunity for anyone with an Internet connection to learn about tribal practices around the world. Such a virtual museum would benefit scholarly research and enhance understanding by laypeople. Moreover, digitization would help mitigate the risk of loss of irreplaceable cultural items in a natural disaster or a war. The recent fire at Brazil’s National Museum, which caused the tragic loss of many irreplaceable items, vividly illustrates the benefits of digitization. One researcher, a member of the Tenetehára-Guajajara tribe who had been studying his people’s heritage, offered a stark assessment: “It felt like a genocide.”
Yet digitization also opens the door to abuse. Commodification of sacred tribal objects has long been both commonplace and problematic. Troublingly, it has allowed non-members of tribes to profit from those objects at the expense of the tribe. Digitization would potentially expand the opportunities for exploitation by profit-minded outsiders. Such individuals could digitize various forms of cultural property and make them accessible to the entire world through the Internet while completely excluding the tribes themselves from the benefits.
Westmoreland confronts the promise and peril of digitization with empathy and pragmatism. At the outset, she gives her own definition of the notably fuzzy term “cultural property,” one that works better than most: cultural property is “intangible sacred traditional knowledge that has been fixed in a tangible medium.” She provides an admirably clear explanation of the significance of such cultural property, which those raised in non-tribal cultures often struggle to grasp. An analogy borrowed from Kristin Carpenter is helpful here: a wedding ring has a different value to a jeweler and a spouse. Similarly, cultural property has intangible aspects that differentiate its value to a tribe and to those outside the tribe. Those intangible aspects are nonetheless real and worthy of some degree of protection. Westmoreland then offers a lucid explanation of the reasons that various potentially-relevant subfields of law—trade secret, copyright, patent, and trademark—each fail to capture the components of cultural property most threatened by digitization and consequently in particular need of protection. She concludes that, to combat the unique threats of digitization, legislators and policymakers should encourage collaboration between tribes and third-parties with an interest in tribal cultural property.
A great deal of legal scholarship falters when it comes time for specific proposals for reform, but not here: Westmoreland concludes her article with a number of ingenious solutions to the digitization conundrum. One example involves straightforward incentives. She explains, “Congress could offer a ‘voucher-based’ system in which libraries and museums receive either federal funding or deeper tax breaks in exchange for negotiating with tribes for licenses prior to digitizing cultural property.” Such a regime would incentivize the educational entities to make an effort to respect tribal knowledge.” Westmoreland further proposes that libraries and museums could use the funds they receive under a program designed to reward collaboration to pay a member of the tribe as a consultant for the digitization project. This would ensure that the tribe benefits tangibly from the project, and moreover would ensure that the digitization is performed in an accurate and respectful way.
Westmoreland’s work is notable for its identification of a pressing problem, clear explanation of the law, and pragmatic proposals for infusing the law with respect for cultural property. More generally, however, her research powerfully exposes the way that applying “neutral” legal principles is often not neutral at all. Legal principles reflect the values of the culture in which they arose and the identities of the people who hold power within that culture. Westmoreland’s examination of intangible tribal cultural property provides a sophisticated analysis of an accessible example. Her research is an important contribution both within and beyond antidiscrimination law. It would be worthy of a more experienced scholar—indeed, it would be worthy of a tenure-track professor. I really liked it a lot.
Cite as: Nancy Leong, Protecting the Intangible
(November 27, 2018) (reviewing Chante Westmoreland, An Analysis of the Lack of Protection for Intangible Tribal Cultural Property in the Digital Age
, 106 Calif. L. Rev. 959