"Dear Mr. Foland": Addressing male domination of the legal profession

Dear Mr. Foland,
We are in receipt of your application materials ... Thank you for your interest in our office.

The above is an excerpt from an email I received the other day after sending in my application materials for a fall externship. It represents the typical response I get from potential employers; it is polite, informative, and most importantly, the respondent presumes that I am a man.

When I apply for jobs, a majority of the responses I get address a Mr. Taylor Foland. As someone with a gender neutral name, I obviously understand why this happens. Taylors come in all shapes, sizes, and genders, and my application materials do not include any gender indicators such as Mr., Ms., or preferred pronouns. But, before I came to law school, this didn't happen at all...not even once. And, it happens often. About 70-80% of the responses I get address Mr. Foland. So, what is it about the legal profession that makes my resume read male?

First of all, let's talk about my resume. I've spent a lot of time crafting my resume over the years, but for the majority of law school my resume has included one or more of the following positions: museum educator at two different history museums, law clerk at the Children's Law Centre, and Law Clerk at the Sacramento City Attorney's Office. In addition to my professional obligations I also list: President of Law Students for Reproductive Justice, Co-Chair of the Women's Law Association, and Member of Law Review. And for a fun little twist to the resume, I've also included a "Personal Interests" section which includes (beware: it's a little cringe): bread and pastry baking (hit me up if you want some baked goods!), aerial dance (a PC way to say pole dancing...it's great exercise for the body and mind!), clothing design (a nod to the sewing machine I break out every now and again), and soccer.

That is, more or less, the sum total of my resume. Again, there are no obvious gender markers such as name prefixes or preferred pronouns. My name "Taylor Foland" is on the top of the page in larger text than anything else. That's about it. So, what is it about that information that leads employers to address me as Mr. Foland?

What strikes me as odd right off the bat is that a lot of the things on my resume indicate a female identity per societal standards and norms. For example, education is a field typically occupied by women and family law is largely comprised of female attorneys. If that wasn't enough, surely most people would think that leadership roles in a reproductive justice society and a women's law club screams, "female!", or that clothing design and dance are extracurriculars associated more often with women. Are the people reading my resume just progressive? Are the people reading my resume even reading it at all??

My experiences as "Mr. Foland" have lead me to consider the ways in which the entire legal system is dominated by men. Male-domination occurs at almost every stage in the process to becoming a lawyer: getting to law school, law school itself, and the legal profession. In such an environment, it is no surprise that an applicant with a gender-neutral name, regardless of the content of their resume, will be presumed male. I will focus on the final stage of domination: the legal profession.

To quickly comment on the first two, barriers often discourage women from applying to law school, and/or lead to "poorer" performances by women in law school, among other things. Some of those barriers include the lack of female law school professors and mentors, emotional labour responsibilities that women often take on in addition to their academic, financial, and personal responsibilities, and systemic sexism that expects certain behaviours of women (agreeable, smiling, pleasant) and pushes women into certain professions (aka "pink-collared jobs" such as nursing, waitressing, and teaching).

But, relevant to Mr. Foland are the barriers in the professional realm of the law, where "his" resume gets read and analyzed. Because although women enrollees have surpassed men enrollees in American law schools for the past three years, female representation in leadership positions (partners and equity partners) and retention rates of female employees demonstrate persisting inequalities.

Why do these inequalities exist? Interpretations of a 2018 Law Society survey suggest some reasons:

In an international survey of over 7,500 women lawyers conducted by the Law Society, the top three barriers to women’s career progression were reported to be unconscious bias on the part of senior colleagues (52% of respondents), an unacceptable work/life balance (48%), and a belief that the traditional networks and routes to promotion in law are male orientated (46%).

Another key factor that others writing on the topic have suggested is the "focus on presenteeism" in the legal profession, or the requirement that lawyers be present in the workplace at all times to conduct their work. This approach disproportionately turns women away from the legal profession after a while, because women often rely on flexible work schedules once starting a family (Note: there is a discussion to be had here about why women have to become more flexible, while their male partners - in heterosexual relationships - often do not).

All of these factors contribute to the male domination of the legal profession. Not only is the build up to becoming a lawyer inaccessible to women, but the profession itself is not conducive to female involvement. When it is men who typically succeed in a profession, it is not surprising that an applicant with a name sometimes given to men is presumed to be one.

Having identified that male-domination exists in the legal field, which is probably not a surprising realization, the question remains: what do we do about it? And, what do I do about my alter-ego, Mr. Foland?

In my opinion, flexibility in all workplaces for both men and women alleviates gender-based pressure to be present/perform at work in ways that go against other commitments. Next, the legal profession must ensure that there are women in senior positions, both at law schools and law firms. Up and coming female lawyers also need greater access to mentoring and sponsorship from those already in the field (e.g. breaking down gender-barriers with respect to networking events). Finally, men need to engage more directly with the equality debate in all aspects of life. 

As to what I, Mr./Ms. Foland should do, I admit that it is something I still grapple with. On the one hand, misgendering has provided me a unique advantage in interviews. Surprising (or correcting in an email) an interviewer with my true gender identity often puts me in a better position in an interview. In a weird way, I have a slight upper hand because they made a mistake.

On the other hand, I recognize the problems associated with this method, which I have followed up until this point. First, misgendering is a real problem for trans and nonbinary individuals. As a cis-female, is my capitalization of misgendering disrespectful and trivializing of trans/nonbinary issues? I think it probably is. Secondly, by failing to put gender markers on my resume, am I taking advantage of male domination by knowing I may pass as male and thus get a (potential) leg up in the application process? To what extent does feeding into the current state perpetuate it? These are all questions I have that I have not figured out the answer to. But, they are questions I will keep asking myself as I edit and submit my resume in the future.

That's all that Ms. Foland has to say about the matter for now. 

The San Antonio Four: The conviction and exoneration of four Latina lesbians in Texas

**Trigger warning: mentions child sexual abuse and rape**

In the summer of 1994, the community of San Antonio, Texas was in shock following the violent and brutal allegations brought by two sisters aged 7 and 10. The sisters alleged that their aunt, 22-year-old Elizabeth Ramirez, and her friends Anna Vasquez, Kristie Mayhugh, and Cassandra Rivera viciously raped them during their week-long visit at Ramirez’s apartment.

The allegations against the women, all of whom were openly gay, were bizarre and constantly changing. The girls claimed one of the women had put a weapon to their heads – a knife in one telling, but later a gun, then two guns. The story also changed with each interview regarding which women did what, who was in the apartment, and whether other children were ever present. Additionally, it wasn’t just the girls’ story that was changing, but the story their grandmother, the outcry witness, gave fluctuated as well regarding how and what the girls told her.

However, these allegations by the girls were supported by the testimony of child abuse expert Dr. Nancy Kellogg, who frequently testified for prosecutors. Kellogg testified that a mark she observed on the hymen of one of the girls was a scar likely caused by painful penetration. Further, Kellogg wrote in her report and told authorities she believed the attack was “satanic.”

The problem with this testimony, as the American Academy of Pediatrics explained in a 2007 report, is that “torn or injured hymens do not leave scars as a matter of scientific fact.” Variations like the ones Dr. Kellogg claimed were evidence of traumatic injury are, in fact, normal. Also, there has never been any evidence to connect Satanism to any of the four women. However, this issue was never addressed, and the testimony became a crucial piece of evidence against the women.

Elizabeth Ramirez was the first to be brought to trial in 1997. During her trial, her defense attorney was able to keep the jury from hearing speculation that the alleged attacks were “satanic-related,” but prosecutor Philip Kazen got the message across nonetheless with language about Ramirez having “sacrificed” her niece on “the altar of lust,” and told the jury she had “held a 9-year-old girl up as a sacrificial lamb to her friends.”

Kazen went farther than just mentioning satanic abuse. During his closing statements, Kazen relied on the women’s sexuality to prove motive for the assault. He also told the jury he wasn’t asking them to convict Ramirez because she’s gay, but that being a lesbian was consistent with her abusing girls.

Ramirez was convicted and sentenced to 37 years in prison.

Vasquez, Mayhugh, and Rivera were all tried together after Ramirez’s conviction. Again, the prosecutors relied on the women's sexual orientation as motive evidence to explain to the jury why these women would want to sexually assault girls in their closing arguments.

All three women were convicted and each sentenced to 15 years.

However, the convictions against the women began to unravel in early 2012 when one of Ramirez's two nieces, now in her twenties, stepped forward to say she had lied.

Stephanie Limon, the younger of the two sisters, called journalist Debbie Nathan and told her none of the abuse happened. Limon went on to explain that her family members coached her on what to tell the police because of their anger toward Ramirez's sexual orientation.

She explained her father, Javier Limon, was the one who came up with the idea and forced her to do it. In the months leading up to the allegations, Javier Limon, who had just broken up with Ramirez’s sister Rosemary, had made many unsuccessful attempts to court Elizabeth Ramirez, including asking for her hand in marriage on several occasions despite Ramirez’s consistent rejection.

In an interview for the documentary Southwest of Salem, Stephanie Limon explained:

I remember everything [Javier] coached me to say, as well as my grandmother. I’m sorry it has taken this long for me to know what truly happened. You must understand I was threatened, and I was told that if I did tell the truth that I would end up in prison, taken away, and even get my ass beat.

Javier Limon went on to have another bitter custody battle with his next partner, Carina Hooper. Hooper described Javier Limon in an interview as a “hurtful, mean, a sociopath.” Javier Limon also accused Hooper’s son of sexually abusing their daughter, and reported Hooper for neglect to Child Protective Services. Her son took a plea deal and is now a registered sex offender.

Soon after Stephanie Limon recanted her testimony, Dr. Kellogg’s testimony regarding the scar on one of the girl’s hymen was brought into focus and discredited. Kellogg herself came forward and stated she would not give the same testimony today.

Further, as media attention on the case grew, it was realized that while the sisters testified all four women were in the apartment at the same time during the sexual assault, if investigators for the prosecutor's office had actually checked the work records of the women during that time frame, they would have realized some of the women couldn’t possibly have been at Ramirez’s apartment during the assault.

With this new evidence coming to light, defense attorney Mike Ware and the Innocence Project of Texas filed for post-conviction relief to have the four women’s verdicts overturned.

Ware explained in an interview with CNN why he believes justice was not done in these women’s trials, stating:

I think the only reason that the investigation was seriously pursued, why there wasn't more skepticism about the preposterous allegations in the first place, was because these four women had recently come out as gay, that they were openly gay.

Finally, in November 2016, the Texas Court of Criminal Appeals found that, “no rational juror could find any of the four Applicants guilty of any of the charges beyond a reasonable doubt,” and exonerated Elizabeth Ramirez, Anna Vasquez, Kristie Mayhugh, and Cassandra Rivera of all crimes.

The San Antonio Four demonstrate how homophobia and bias works within our justice system to cloud the judgement of the police, prosecution, and community. The fact that these women were Latina and lesbian was actively used against them during their persecution. In fact, the jury foreman on Ramirez’s trial, Lonnie Gentry, was a minister who admitted during voir dire he believed homosexuality to be a sin. There is no way that, along with prosecutor Philip Kazen telling the jury that lesbians were more likely to sexually assault young girls than straight women, did not sway the jury.

These women spent decades of their lives in prison because Philip Kazan blatantly and unapologetically capitalized on the persistent and thoroughly incorrect notion that LGBTQ people are predisposed to sexually harming children in order to win his case. And, not only did he get away with doing this, but he went on to become a judge and ran for District Attorney in 2014.

While there is a happy ending in that all four women have now been exonerated, there shouldn’t have been a story requiring an ending in the first place.

Combatting the attorney archetype

Growing up, my family instilled the belief in me that if I worked hard enough, I could make any of my dreams a reality. Attending law school was that dream for me. I believed my capacity to empathize, combined with my ambition and the skills I would learn in law school would make me an effective advocate. However, those outside of my immediate family seemed to have a different impression of my place in law school. Their comments persisted throughout my time as a law student.

"But . . . you don't seem like the lawyer-type." This is the sentiment I hear over and over again when I tell community members that I am a law student. Every time I hear that comment, I cannot help but question what qualities I am missing that make it difficult for others to perceive me (or even respect me) as a law student.

When I think about who I am as a person, a number of different traits cross my mind. For example, I would say that I am empathetic, independent, nurturing, and ambitious. Our socially constructed categories of masculinity and femininity would place independence and ambition in the former category and place empathy and nurturance in the latter category. This separate spheres ideology becomes problematic when people assign value to those categories and decide what qualities are valuable and which ones are not.

I always saw myself as an amalgamation of different qualities, but now these traits were being broken up into categories and instead of syncing up harmoniously, these traits were being weighted, categorized, and assessed differently by others – especially in professional settings. These traits had been set up on opposing sides, with the socially constructed traits of femininity (which I thought of as personal strengths) being considered professional weaknesses and liabilities. In light of this, I constantly wonder who I should be.

In their germinal law review article, Rand Jack and Dana Crowley Jack posit that a number of female professionals, especially female attorneys, have the same internal tension of defining themselves in their profession.

One solution women have adopted is to mute their “feminine” characteristics. Pixar recently released a new animated short film that illustrated this issue. Purl is the story of a ball of pink yarn who begins work at a male-dominated office. The men in the office make it clear to Purl that she doesn’t belong in the office. They ignore her ideas and exclude her from office activities. In an effort to avoid being shut out, she decides to change who she is to fit into her office’s culture – going as far as changing her appearance and speaking in a deeper voice. To her surprise, it worked.

But as Jack’s article finds, even when women mute their feminine characteristics and attempt to assert more masculine characteristics, they are stuck in a catch 22 because no matter what they do, they can never really "get it right".

If a woman chooses to reject the usual lawyer image and follow a less combative form of participation, she may be labeled too feminine, and others may doubt her fiber as a tough lawyer. A woman attorney must walk the fine line between being feminine and being assertive. . . If she is too feminine she is accused of trying to use it to her advantage and is therefore resented, but if she is equally assertive to her male counterpart, she is accused of being too aggressive.

This identity strain is an added burden on women in the workplace. As women, we exert so much energy to define the "right" persona for our office culture, that it inhibits time, effort, and energy from focusing on the work we were hired to do.

It further shakes me to my core to think that seemingly masculine traits have become the new "gender neutral" characteristics that have embodied the archetype of lawyers. Not only does this signal that women must change themselves to succeed in the legal profession, but an inherent message is sent to women that “feminine” qualities have little to no value in the workplace. It seems like I have to choose between being a lawyer or being myself.

But is it really true that adopting masculine characteristics would make me a better lawyer? Is it really true that masculinity is synonymous with professionalism? An earlier blogger on this forum, Alcestis, posted about how they didn’t agree that “becoming a man in a ‘man's world’ will help produce a better and more efficient working environment.” Just because someone embodies "feminine" characteristics, doesn't relegate their opinions and contributions as meaningless. In fact, these unique traits may help provide valuable perspectives and solutions to increase efficiency and effectiveness in the workplace.

When I think about my future as a lawyer, I think about this balancing game women must play to fit into their office culture. I also think about the importance of incorporating more "feminine" features into the work environment.

I believe that people should not have to mute characteristics society has devalued to fit in. Lawyers need to be fierce, professional, hardworking, and competent advocates. Those traits and femininity are not mutually exclusive. In fact, femininity may even enhance features essential to lawyering.

Going forward, while I will continue to hold myself to highest professional and ethical standards, I will not mute who I am as a person to fit into an office. While I don't want to be relegated as outsider, I think it would be worse to change who I am and incidentally perpetuate the devaluation of femininity in the workplace. I may not be the lawyer type, but I will do everything in my power to fight the one-dimensional notion of who a lawyer is and can be.

The benefits of a feminist legal education

After having taken a number of feminism courses in my undergraduate years as a part of my sociology degree, I figured it was only fitting to take feminist legal theory in law school. I was excited because this course offered an opportunity to take a class that did not seem like a traditional law school class but one more similar to my undergrad sociology classes. In the end the course was everything I hoped it would be, a chance to have conversations about very interesting topics without having to worry too much about the legal analysis, bar exam preparation, etc. Now that the course is over I find myself asking what the value of the class was other than providing a healthy mental break from the monotony of law school courses.

Before jumping into a discussion of the value of feminist legal theory I think it is important to define what feminist legal theory even is. The best definition I could find was provided by Leslie Francis and Patricia Smith, writing for the Stanford Encyclopedia of Philosophy. They write:

"Feminist philosophy of law identifies the pervasive influence of patriarchy and masculinist norms on legal structures and demonstrates their efforts on the material condition of women and girls and those who may not conform to cisgender norms...to understand how legal institutions enforce dominant gendered and masculinist norms." 

This seems like a good place to begin. While Leslie Francis and Patricia Smith were defining "feminist philosophy of law," the same definition applies to what feminist legal theory is. At least from my limited experience, the course was a critically reflective look at the way our society is structured and the way the judiciary, executive, and legislative branches of government legally justify patriarchy. This is immensely valuable the law is limited but powerful in terms of what it can do. As aspiring lawyers it is essential that we learn to deconstruct the law critically in order to do better in shaping the legal landscape of tomorrow.

One of the aspects of law school that I have a love-hate relationship with its length. Three years of school is great because it offers us the chance to find good jobs and start earning money sooner than other professional fields. This convenience comes at a great cost, it means we have a really limited time to learn the ins and outs of procedure, professional responsibility, legal research and writing, and specialization in a certain field of law. In this rush to learn how to follow the rules and be competent attorneys there is hardly enough time to deconstruct the law. There is little to no time to stop and wonder why certain aspects of the profession are the way that they are, to question whether there are better alternatives. In this crazy three year rush, patriarchy is reinforced. Unsurprisingly, the legal professional is one that has been historically shaped by white men and our current legal customs are the legacy of that. From what women are allowed to wear and how they are allowed to speak to sexual harassment in the workplace and the lack of female law firm partners, patriarchy is alive and well.  In the face of all of this, the value of feminist legal theory should be obvious. Any opportunity to exam and question in the law is valuable.

Feminism classes are clearly valuable in my eyes but this is still not a widely accepted viewpoint. While more and more people are seeing the value of feminism classes, it is still more popular to dismiss these types of courses as fringe classes for radical men-hating women. As Anna Diamond describes, this is the case for many reasons including misconceptions about what feminism is, misguided beliefs that we are in a "post-feminist" society, and doubts as to the real-world value of feminism classes.

It is ironic that one of the most popular reasons why people discount feminism classes is that they think those kinds of courses have nothing to offer them or they they think those courses are only meant for women. One of the reasons why I think feminism classes are essential is because of their intersectionality. As Ms. Diamond describes it, "Intersectionality tells us that there is no singular experience for women because of the way gender works in conjunction with race, ethnicity, social class, and sexuality." Indeed feminism does touch upon all of these topics and more. By creating the avenue to think critically about other aspects of society, which are undoubtedly relevant to everyone, feminism classes truly are classes that everyone could benefit from.

Ultimately, I found feminist legal theory to be a thrilling class that I very much looked forward to. As is typically the case with these types of courses, the class could be a bit of an echo-chamber. What I mean by that is that in general the class tended to agree on most subjects. While this did not hamper conversation, it does mean that the people who would probably benefit most from speaking about these kinds of subjects were not in the room. Nevertheless, the class was a valuable experience. If anything, I believe that classes such as these should be required of all law students the way professional responsibility and legal research and writing are. Perhaps then we could begin to think critically about the profession we are going into instead of being forced to conform to archaic customs.

How to Respond to this Election - Part II "Get Legal!"

In part I of this post, I showed a great amount of my chagrin and sorrow about the election. I still doubtless feel those things, but at this point, it's more important for me to discover avenues of hope and empowerment. In order to do so, I look to the women that I love.

There are a few women I know that are nearly unperturbed by this election. It has impacted them, but they have not missed a beat. In fact, their urgency to work hard is only rising. I was curious as to how these women could be so stalwart; how they could be so disappointed in the election, but resist feeling disheartened. Then something occurred to me. These women have the most faith in the US legal system of all the women I know. I wanted to find a door into the Church of Legal Faith, myself. So here goes.

When in need of legal-lady-power, I often look to one of my heroes, Ruth Bader Ginsburg. She must be particularly aggravated with the fact of our new President Elect, whom she deems inconsistent and egotistical —I second that motion, Justice Ginsburg, and despite your graceful apology, we all know where you stand— but in the aftermath, she continues to be a rockstar on the bench and off. Perhaps this is because RBG originally became interested in the law during a time I liken very much to the milieu of our nation today: the Red Scare (there is some agreement about this comparison). In a heartfelt interview with NPR's Nina Totenberg (podcast version on What It Takes), Justice Ginsburg spoke of an undergraduate constitutional law research assistantship at Cornell in the early 1950's. For her RA position, Justice Ginsburg was tasked with reading transcripts of hearings before the House Un-American Activities Committee and the Senate Internal Security Committee. She told Totenberg:

"[F]rom those transcripts I saw that there was no one standing up for these people reminding our Congress that we have a 1st amendment guarantee of freedom of speech and we have a 5th amendment guarantee against self-incrimination. So I thought that was a good thing to do; that a lawyer could have a professional career, could have paid job . . . and also volunteer services in hard times to make things a little better. That’s when I had the idea that I would like to be a lawyer."

Amen, Justice Ginsburg. These are definitely hard times. I therefore intend to look to the lawyers who, in the face of a Trump Presidency, are planning to do exactly what inspired RBG to become an attorney: make things a little better. Here are my heroes of the day:

1. The Southern Poverty Law Center: SPLC has been doing amazing work lately, particularly around the surge of hate speech and violence that has arisen in the wake of the election. In their publication Ten Days After: Harassment and Intimidation in the Aftermath of the Election, they urge the President Elect to "do everything in his power . . . to reach out to the communities his words have injured" as opposed to "feign[ing] ignorance." They have also been collecting extraordinary amounts of data: observing that 867 hate incidents have occurred nationally since Trump's election. In addition, they continue to fight hate through impact litigation such as Southern Poverty Law Center, Inc. v. United States Department of Homeland Security, et al. where their complaint argued that Department of Homeland Security and ICE violated the Freedom of Information Act by withholding information on raids that targeted over 100 women and children in Texas.

2. California's likely new Attorney General Xavier Becerra, who recently tweeted: "#DREAMers are some of the most courageous people I’ve ever met. We stand with you & are ready to fight for you", says he intends to fight to retain California's liberal clean energy, environmental, criminal justice and immigration policies. If he does so, he might lead California into being "the tip of the spear for state-based resistance to Trump and the Republican party’s inhumane vision for our country."

3. National Center for Lesbian Rights: NCLR has updated its blog several times regarding the election, including informational posts about Transgender Rights, consoling its constituents that marriage equality will hold strong due to stare decisis, and campaigning against Jeff Sessions' nomination. In addition, NCLR continues Equality Utah v. Utah State Board of Education, the case they filed on October 21st, 2016, challenging state laws that ban positive speech about LGBT people in Utah public schools.

Read more here: http://www.fresnobee.com/opinion/article118333013.html#storylink=cpy

4. The American Civil Liberties Union: There was very little that buoyed me up on the days following the election, however, the ACLU's homepage made me smile every time I clicked. Trump's face was plastered it with bold words hanging in the air beside him: See You In Court. The ACLU leveled up from that rallying cry, calling the President Elect a "one man constitutional crisis" and, wasting no time, released a 27-page brief entitled the "Trump Memos" that brilliantly displayed the unconstitutionality of Trump's policies regarding mass deportation, large-scale surveillance, profiling, and attempts to overturn Roe v. Wade. Yesterday, the ACLU lived up to its promise and joined with the Center for Reproductive Rights and Planned Parenthood. They filed simultaneous lawsuits concerning unnecessary abortion restrictions in Alaska, Missouri, and North Carolina. Their message was clear: "we'll see [people like] you in court" before you even take the Presidential Oath, Mr. Trump.

I may still be a Legal Faith agnostic, I can't lie. But these warriors of the legal system have encouraged me, and more than anything, reminded me why I am am joining the Profession. Thank you, SPLC, the State Government of California, NCLR, ACLU, Planned Parenthood, and Center for Reproductive Rights. I'm grateful. 

In my gratitude, I'll leave you with the words of NCLR Executive Director Kate Kendell:

"Together, we fight on and we fight back. We must harness our grief, fear and outrage and serve justice. Onward. . ."

Minor's Prostitution in Switzerland Banned in 2013

In Europe, there is still a debate regarding whether prostitution should be legalized or not. I also have some difficulty to decide between the two principal arguments. On one side, legalization allows a better protection of sex workers, which is more than necessary regarding the danger of this occupation and the abuses that are committed. On the other side, I can’t see it otherwise than an exploitation of human beings that should be banned. Whereas the discussion is complex, it appears much easier to decide when we are talking about minors’ prostitution. The answer seems clear: children should be legally protected from prostitution. If someone would have asked me five years ago if the prostitution of minors was legal, I would have sworn that it was not possible in Switzerland … And I would have been wrong. Indeed, until 2013, the prostitution of minors aged between 16 and 18 was legal.

How that could be possible in 2010 in a western, supposedly developed nation? That seems crazy, but it was possible due to two factors combined together. First, prostitution is legal, contrary to the US, and only the forced prostitution is illegal. Second, the age of consent, which is the age at which a person is deemed legally competent to consent to have sexual intercourses, is fixed at 16 years old, as it is in most of US states.

Fortunately, in 2010, The Swiss Federal Council, approved the 2007 Council of Europe Convention on the Protection of Children against Sexual Exploitation and Sexual Abuse (or “Lanzarote Convention”), which took effect on July 1st, 2010. The modification of the Swiss Penal Code necessary to respect the terms of the convention was adopted in September 2013 and took effect on July 4th, 2014, which means legislators took 4 years to produce a law stating that requiring the services of minor prostitutes is a crime.

This situation was qualified as “ gap in the law” when it came to the attention of the public through the media, but I can’t prevent myself from thinking we did not legislate on that earlier because it was mostly a feminine problem. As often, these questions take years to solve and don’t seem to be taken seriously as a real problem.

How to land the job: intelligence, skill and makeup?

A few weeks ago, I had a conversation with a female colleague who was on her way to a job interview. She asked me, “Do you think my makeup looks okay? It’s not too much is it?” We went on to talk about how difficult it can be to find the right balance when it comes to makeup. Female interviewees want to wear makeup, because they think potential employers will view them as put together. However, they don't want to wear too much makeup, because this could make the potential employer think they're an "incompetent diva."

A study found that wearing enough makeup (but not too much) increases people’s perceptions of a woman’s competence, likeability and trustworthiness. In fact, the study found that perceivers who view a female face with makeup make inferences about what it may signify about the user’s personality, intentions, or character.

But wearing makeup incorrectly can have detrimental effects. High-contrasting makeup made testers conclude that the woman was more “untrustworthy.” The study noted that people might get a poor impression if the woman wears the wrong color or texture that “isn’t enhancing...natural beauty.” There is also a general idea that if a woman is extremely pretty or too glamorous, then she must be dumb. Women have to be careful not to look too good.

Magazines and newspapers today publish articles instructing women on the proper workplace makeup balance. One recent article was entitled “Must-Follow Beauty Rules for Getting Ahead at Work: Do you have CEO aspirations and 6-figure dreams? Discover the beauty tips to help you get there.” So there are certain beauty techniques a woman must follow in order to be a CEO. I knew I was missing something! The article described the proper makeup tips and stylings for many “types” of career women:

The Artsy Entrepreneurs: “Sexy and a bit undone…still be yourself, but an enhanced, even more empowered version of yourself…”

The Jet setting CEO: “Very feminine…"

The Low-Maintenance Professional: “When you’re in a position of authority, you can't have too much fun with your look…you don't want to send the wrong message to male clients…[a]t the same time, you can’t look 10 years behind.”

Sexy but a bit undone? Not too much fun, but not 10 years behind? I’m no makeup expert, but I don't understand what this advice means when I'm applying makeup.

The average employer or potential employer now wants women who wear just the right amount of makeup. And why shouldn't they? Requiring women to use makeup and other enhancement techniques was recognized as legally acceptable in the workplace. In 2006, the Ninth Circuit held that Harrah’s “Personal Best” policy requiring female employees (no similar requirements for male employees) to have “teased, curled or styled” hair, wear makeup (including lipstick) and nail polish was constitutional! The court found that there was a legitimate business justification for the casino’s policy, and therefore the policy did not impose an unequal burden on males and females. The legitimate business justification, however, has nothing to do with utility in completing job functions. Instead, it is entirely about fulfilling the female beauty standards perpetuated in society.

As a female employee, I usually choose to wear makeup to work. However, sometimes I choose not to. Sometimes my eyes become irritated when I wear makeup for long periods of time, and I’ll go without wearing it for a few days. Similarly, I know other women who wear contacts, and choose to give their eyes a break by wearing glasses and going without makeup. Other women simply choose not to wear makeup. My peers and I still dress in the appropriate business attire for the position and look presentable. Should we be punished because we don’t have makeup on? I guess the answer to that question depends on the employer’s policies. 

The explicit and implicit requirements for women to wear the right amount makeup in the workplace is part of the larger female beauty standard prevalent in our society. Women, even in their jobs, are expected to meet this standard on a daily basis. So much so that some women feel inadequate when they don't wear makeup. A study of 1,300 adult women found that 44% have negative feelings about themselves when they are not wearing makeup, including feeling self-conscious or unattractive.

Daniel Hamermeash, an economics professor at University of Texas, who wrote the book Beauty Pays, said that it makes sense that makeup makes women more likeable: “I’m an economist, so I say, why not? But I wish society didn't reward this. I think we’d be a fairer world if beauty were not rewarded, but it is.”  Read this post for a discussion of different responses to employer makeup policies, and this post for more on the pressures placed on aging working women to remain youthful. Also see The Beauty Bias: The Injustice of Appearance in Life and Law by Deborah Rhode for an overview of the ways that appearance impacts job qualifications and hiring practices.

Simone de Beauvoir’s analysis of patriarchy’s genesis (part I): a synopsis

Considering that yesterday was International Women’s Day, I believe it is fitting that I write a post concerning a left-leaning intellectual’s discourse on woman’s subjugation. I find that Simon de Beauvoir’s historical prominence as a feminist theorist is somewhat related to the revolutionary socialist movements that engendered what we know as International Women’s Day.

As a side note, which I believe is worth making because it is almost never made, International Woman’s Day is the product of the revolutionary outbursts of the early twentieth century. The earliest Woman’s Day observance was held on February 28, 1909, in New York; it was organized by the Socialist Party of America in remembrance of the 1908 strike of the International Ladies’ Garment Worker’s Union. In 1917, demonstrations in Saint Petersburg commemorating International Woman’s Day inaugurated Russia’s February Revolution. Thus, following the October Revolution, the newly established Soviet Union made Woman’s Day a national holiday in 1917. It was not until 1977 that the United Nations General Assembly invited member states to proclaim March 8 as a day commemorating woman’s rights.

In relation to all this, as stated above, the following is my assessment of book one, chapter three of de Beauvoir’s The Second Sex. The chapter is entitled “The Point of View of Historical Materialism.” In the chapter, de Beauvoir critiques historical materialism, as delineated by Friedrich Engels in his treatise The Origin of the Family, Private Property, and the State. De Beauvoir asserts that Engels’ historical materialism is fundamentally incapable of accounting for the origin of woman’s subjugation.

As de Beauvoir puts it, historical materialism is a Marxist conceptual framework based on the premise—at this point, it is axiomatic—that humanity is more a historical reality than an animal species. In other words, the human condition is contingent “upon the economic organization of society, which in turn indicates what stage of technical evolution man has attained.” As Karl Marx famously puts it in the preface to A Contribution to the Critique of Political Economy:

The mode of production of material life conditions the general process of social, political and intellectual life. It is not the consciousness of men that determines their existence, but their social existence that determines their consciousness.

This is a rudimentary explanation of the concept, but for the purposes of this post it will suffice.

De Beauvoir explicates that Engels in his treatise employs historical materialism to explain the origin of man’s primacy. As she recounts, Engels proposes that humanity, in its earliest historical stages, was embryonically egalitarian. The land belonged to all members of the tribe. The primitive nature of the tools of survival, spears and hoes, limited agricultural development, so that woman’s strength was sufficient for gardening. While man hunted and fished, woman remained at home tending to the tasks of domestic labor, which was productive labor—e.g. making pottery, weaving, and gardening. Consequently, woman played an integral part in economic life. Gender equality naturally sprung from this equal relationship of production.

However, this egalitarian division of labor was upset with the discovery of various metals, which would be used in the invention of new, more sophisticated tools. Men were thus capable of enlarging the scope of agricultural production and clearing vast expanses of wild land. As Engels puts it: 

The same cause which had assured to woman the prime authority in the house— namely, her restriction to domestic duties—this same cause now assured the domination there of the man; for woman’s housework henceforth sank into insignificance in comparison with man’s productive labor—the latter as everything, the former a trifling auxiliary.

As a result of the increased production, which these new-fangled tools allowed, man began to accumulate more than he required for survival. This became his private property; a wholly new concept made its way to the core of the human condition. Man began to trade the surplus, and he began to enslave other men and women.

Thousands of years pass, men and women, on account of the advancement of thoroughly technologized industry, become equal in terms of their capacity for productive labor. However, according to de Beauvoir, the Marxists clamor that it is the resistance of ancient capitalist patriarchy that prevents the materialization of this equality.

De Beauvoir’s criticism of Engels’ account is actually quite simple. She takes to task Engels for what she calls the slurring over of the passage from the regime of community ownership to that of private ownership. She writes, “Engels assumes without discussion the bond of interest which ties man to property; but where does this interest, the source of social institutions, have its own source?” Moreover, she asserts that it is not clear that the institution of private property must have necessarily involved the enslavement of women. She criticizes Engels for not having even attempted to offer his interpretation of this paradigm shift.

In response to what she sees as a conceptual vacuum, de Beauvoir posits that private property can only be understood with reference to the original condition of the existent. That is to say that man’s latent cognitive proclivity toward autonomy and individuality enabled private ownership. Without the advent of technology, man thought of himself as a passive element at the mercy of the natural world. With the birth of complex tools, man became a creator, a manipulator of the forces of nature. Thus, because of new inventions, man lost his feeling of inferiority and fear, and he found within himself the courage to live sovereignly and individually.

De Beauvoir adds—prototypical of contemporary critical theory—that man innately possesses an ontological substructure, a foundation in the nature of his being, which was kept dormant until the creation of new tools. This fundamental quality, as it were, is the drive to possess the Other. According to de Beauvoir, each individual finds life’s meaning through alienation; we seek to find ourselves in something outside of ourselves, an Other, by making it our own. To the collective hunter-gatherer tribe, the Other was the land. And, once the individual man becomes detangled from the tribe, he needs a personal incarnation, an Other, over which to take mastery. To him, the Other is the plot of land and the various trinkets he begins to appropriate, private property. The Other, to man, is also woman.

De Beauvoir continues by explaining that woman’s physical limitations for hard labor constituted a disadvantage only from the perspective of man’s inherent need for transcendence. Effectively, woman was not able to keep up with man. Thus, she became inferior. However, she concedes that this need for transcendence did not really engender inequality, as man could have easily had a relationship of friendship with woman throughout his voyage of transcendence. The phenomenon of subjugation was ultimately “the result of the imperialism of the human consciousness, seeking always to exercise its sovereignty in objective fashion.”

Child Cost (Part 2): Parental Leave

As great as I think the system of maternity leave is, it is not yet fully satisfying and it could be improved by a parental leave system.

A paid parental leave is a set amount of time that two parents can allocate between themselves after the birth of a child. One of the downsides, but also one of the strengths of the parental leave, is precisely that it will be based on the choice of the parents. The mother, the father, or both, can take the leave, simultaneously or not. For instance, if there is a parental leave of 6 months, the mother and the father can take 3 months each. They also can decide that the mother will take 5 months and the father one month or that only one of them will stay with the baby during the entire leave.

Single mothers can take the whole leave. And families that want to live in a traditional way where the woman take all of the leave can still do it.

There are two principal reasons why I advocate establishing such a parental leave.

First, women are still doing much more than men in the matter of household chores in the family. However, young couples seem to have a more egalitarian distribution of the tasks; a lot of things change at the arrival of a baby. By establishing a link between father and children as soon as possible, the father should naturally become more involved in child care going forward.

As women carry all the burden of child caring, we could find some more radical means to make men involved in it (for instance, a mandatory paternity leave). Parental leave is actually not one of these radical means, because it is a soft measure. More and more men nowadays want to be involved in the care and education of their children. Parental leave that is not mandatory for men, will simply let the possibility for some fathers to access that.

The second point I want to talk about is linked to a characteristic of women. But before I go on, let me say that “Cultural Feminism” does not convince me, simply because most of the time, as I am reading characteristics that women are supposed to have, I do not see them in my own personality. Furthermore, I find them in a lot of my male friends’ personalities. Neither I think that biology has such still a huge impact in every aspects of life. However, some biological characteristics should be taken into account, and the recovering need of the body after delivery is one of them.

A friend of mine, a medical school graduate, told me about his experience as a volunteer in Guinea. After giving birth, women there must rest. They focus in feeding the baby and resting in order for their body to recover. Other members of the family (generally mother, grandmother, sisters) assume most part of the care given to the children, except feeding. In our occidental society, the presence of other members of the family is rarer nowadays. But physical tiredness still exists. In this sense, and in order to compensate the absence of other members of the family, the involvement of the father could really help during the first days following birth, a stressful and difficult period even when there is no post partum depression.

I also found a significant number of articles mentioning researches that demonstrate the benefits of the mother-newborn relationship at the beginning of their lives. I am pretty sure that the father-child relationship has some great benefits, too, at least the one to build a strong link between them that will lead to more implication of fathers in matters of child caring.

However the support of the father could be important in the first days after birth, most of the couples will try to optimize their leave. They will generally not take the leave in the same time, in order for the child to spend longer time with one of the parent.

Moreover, the choice of the parents will actually not be a true one, because it is linked with other aspects. Indeed, money will be most of the time a decisive factor. As women’s salaries are still not equal to men’s salaries everything else being equal, neither the assessment of “typically” feminine jobs, the decision will probably be made by the couple relatively to the higher salary. So it may not help as well as a more coercive measure, but it will at least let men who consider paternity as something important and valuable to be a part of child care and rearing.

Parental paid leave may be considered as a feature of formal equality, in the sense that the law will show that there is no reason to treat men and women in a different way. As a measure that can be considered as tending to formal equality, it could be addressed the same reproach than previously, namely that women are fighting for men to benefit from some advantages which only women had. But from my point of view, it will benefit women and children, also, even if it’s in an indirect way.

Moreover, I find it deeply fair that men have the same right as women to take care of their children, because as most of the feminists, my goal is to reach equality among human beings. At the end, everybody wins from this improvement, children, men and women. And I hope that at the time of a pregnancy, my family could benefit from such a system.

Child cost (Part 1): Maternity leave

When we discussed the cost of children in class last week, I realized that the US maternity leave, as provided by law, is unpaid. 

I was a bit surprised by the fact that maternity leave is unpaid in the US. The system of maternity leave in Switzerland is paid. But in my opinion, it’s not enough, and I would advocate a parental leave, as I will explain in my next blog. 

First of all, paid maternity leave is not only Swiss, but exists in all European countries. Even though Switzerland is not part of the EU, there are some bilateral agreements between the EU and Switzerland, and all Swiss legislation is euro-compatible. So, the law of Switzerland fits the requirements of the EU. 

I don’t consider Switzerland to be a progressive country in the matter of feminism. The federal voting right (which is the voting right on a federal level) was accorded to women in 1971. The last state (Appenzell Rhodes-Intérieures/Appenzell Innerrhoden) to give the right to vote to women for the state level did so only in 1990. In fact, the population of that state, through its vote, denied women the right to vote, but the federal court decided it was contrary to the Swiss constitutional. Even if the government was composed of a majority of women in 2010, as one of the previous posts showed, women are still underrepresented in high responsibility jobs. A gap still exists between men’s salaries and women’s salaries, everything else being equal, and “typically feminine” jobs are still devaluated, etc. Moreover,  it took sixty years to adopt a law providing maternity leave. Indeed, the Swiss constitutional provision establishing maternity insurance was decided in 1945. Subsequent laws, however, proposed different ways to implement this insurance, and were rejected several times by voters through the direct democracy system (so-called referendum). Finally, voters, on July 1st 2005, that is to say sixty years later, adopted the law implementing this right to paid maternity leave. 

To explain the system, a little digression about men and military service is necessary. In Switzerland, military service is (still) mandatory for men. In order to compensate for their temporary inability to work at their workplace, the state created a “loss of income insurance” for them in the 1950s. What was finally adopted in 2005 was simply to extend this compensation to maternity. Since then, women have the right to a maternity leave of 14 weeks after the birth of a child. They receive 80 % of their salary, which is paid by the so-called “loss of income insurance.” However, the amount of money available per day is subject to a maximum. This means that women, in case of pregnancy, or men, in case of military service, who receive a high income, will not get 80 % percent of their salary. Employers, however, remain free to compensate the 20% of the remaining salary, or to pay the usual amount of salary in the case of high-income earners. 

From my point of view, maternity leave is a great step in the achievement of more equality in the society. The cost of childcare is, at least in part, shared by the society, because the mother would still be paid when she is prevented to work by her pregnancy. 

As stated in many of our class discussions and in many readings, the public sphere was organized by men, for men. Maternity leave is one means to adapt this public sphere to the needs of (a great number of) women. For sure, not all women want children; neither all men want to participate to the public sphere. But not having children doesn’t mean that we don’t have to participate in building a better society. Would it be fair if everybody’s taxes were not used for school? To the debate about wether children are a public good or not, I would say they are. 

As a constraint which has weighed on a lot of women, and moreover on single-mothers, the loss of income resulting from pregnancy should be taken into account. I really think maternity leave is a wonderful improvement, but it’s not enough. A parental leave would be a better solution, and that will be the topic of my next post.

The Wal-Mart chronicles: part II (looking forward)

Last week, I wrote about how the the U.S. Supreme Court rejected the Ninth Circuit’s certification of a class in a class action sex discrimination lawsuit brought by current and former female employees of Wal-Mart against the superstore. (See Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011); Dukes v. Wal-Mart Stores, Inc., 603 F.3d 571 (9th Cir. 2010).) Although the class action failed, the company continues to deal with the possibility of individual claims of sex discrimination.

In the wake of this public relations nightmare, the superstore is going to great lengths to re-brand itself as female-friendly. On Wednesday, September 14th, Wal-Mart announced new programs aimed at helping women-owned businesses and women workers. According to an article in the Los Angeles Times, Wal-Mart Chief Executive Mike Duke voiced the company's party line when he stated that Wal-Mart "want[s] women to view us as a retailer that is relevant to them and cares about them . . . [wants women] to be leading suppliers, managers and loyal customers."

Loyal customers perhaps most of all. Leslie A. Dach, executive vice president of corporate affairs for Wal-Mart, additionally noted that the vast majority of Wal-Mart’s customers are women. According to Slate, most of Wal-Mart’s 200 million weekly customers are women, and women control $20 trillion in annual consumer spending.

Accordingly, Wal-Mart has developed five goals designed to help empower women across its supply chain. These goals, which the store hopes to accomplish by 2016, are:

1. “Increase sourcing from women-owned businesses.” Over the next five years, the company will source $20 billion from women-owned businesses in the U.S. That works out to $4 billion a year, a $1.5 billion increase from current annual sourcing from like businesses.

2. “Empower women on farms and factories through training, market access and career opportunities.”

3. “Empower women through job training and education.” Domestically, Wal-Mart will help 200,000 women from low income households to “gain job skills” and “access higher education.” Internationally, Wal-Mart will help 200,000 women through “successful retail training programs.”

4. “Increase gender diversity among major suppliers.” Wal-Mart intends to work with its professional service firms and major supplies to increase female and minority representation on Wal-Mart accounts.

5. “Make significant philanthropic giving toward women’s economic empowerment.” The company will support the above-listed programs with over $100 million in grants that will drive progress against economic goals.

Additionally, the company has established country-specific goals in those international markets in which it operates. For example, Wal-Mart China is “helping women farmers make their agricultural operations more sustainable and productive through its direct farm program.” In Brazil Wal-Mart is, apparently, hiring female construction workers to build it’s new superstores.

More information about these programs can be found here.

One needs only to watch the beautifully produced and absurdly predictable promotional webcast announcing the women’s initiatives to surmise that Wal-Mart’s first priority is probably its own public image, and not women’s well-being. That said, whatever the motivation, these programs seem admirable. A substitute for treating its domestic workers equitably? No. But admirable nonetheless.

In short, it’s hard to find fault with someone pledging billions of dollars to women’s issues. And so I sat, trying to find fault with Wal-Mart, but feeling on whole surprisingly positive toward the company. (The promotional video is working!)

Finally, though, I did think of one problem. The trouble with trying to help “women,” broadly, is that – as Wal-Mart’s promotional video actually makes clear – women are in such different situations worldwide. (See Katharine Bartlett and Deborah Rhode's chapter in the book Gender and the Law on non-essentialism.) In certain communities mentioned in the video, like China, throwing money at inequality through literacy programs and sex education classes will probably have a positive influence on both first-wave issues such as attaining legal rights and third-wave issues such as how men perceive women within that culture. But in other communities discussed, such as Arkansas, throwing money at the problem may not change either of these things. In those places, it may not be law or financing but our common social philosophy that needs to change.

No matter how hard it tries, corporate policy can't dictate national or regional culture. At the end of the day, it seems that Wal-Mart's problem may be, fundamentally, all of our problem.

Growing pains: The tension between my parents' principles and feminism.

'Tis the season for fellowships. Many third year law students are preparing applications for fellowships across the United States. I recently submitted an application that asked: "Describe a personal or professional challenge that you have faced in the past and how you overcame that challenge. (3500 characters or less)."

Below is my response the fellowship question:

"Certain principles were instilled in me at a young age as a female raised in a traditional Latino family. Women are patient. Women are empathetic. Women are care-takers. Women are unselfish. We work with what we are given. We do not challenge men. We do not question authority. Granted, some of these principles are great assets. They help to define my dedication and compassion for indigent people. Others create hurdles to achieving my mission to be an agent of social change. Since continuing my education, I have struggled greatly with learning how to assert myself. This challenge only increased upon entering the legal profession, where the majority of my colleagues and superiors are men. This personal struggle is further compounded by the fact that I work in the public interest sector, where resources are limited. My personal struggles in learning to become assertive have become my greatest professional challenge, which I have learned to overcome with patience, grace and, most importantly, self-confidence and determination.

Although I was a good student and employee when not asserting myself, the burden of silencing my concerns impacted my work. Although I often had to work long hours, I have always produced high quality work-product, yet I remained submissive. However, when I began asserting myself and my needs, I was shocked to see that not only did my quality of life improve, but my work-product did as well. I quickly learned that being assertive was not synonymous with being confrontational. For example, I worked on a project where a teammate unexpectedly left. Our deadline was rapidly approaching. Although I took on the work, it was impossible for one person to complete the work on time. I feared informing my supervising attorney that I needed a new teammate or that the deadline needed to be changed for fear of upsetting--or worse--disappointing him. No matter how many ten hour shifts I put in, the project could not possibly have been completed in time. After building up the courage to tell him what I needed, we decided to change the project’s deadline to accommodate the circumstances, and the conversation effectively moved our work forward.

My attitude in response to the arguably sexist principles I was raised with changed over time for a number of reasons. One of the major driving forces behind my conscious and often painful effort to assert myself was the realization that if I remained timid I would be an ineffective agent of social change. I am ultimately hurting my clients if I cannot be the finest advocate there is, even if this means confronting some of the deep-seated principles I was raised with. Initially, I was overwhelmed and felt hopeless at times in my quest to assert myself. However, knowing that this was for the benefit of the people whom I aim to serve pushed me through. Oddly enough, my greatest form of support came from the other set of the principles instilled in me: patience, empathy and flexibility. These qualities are instrumental in providing balance to what had become my greatest personal conflict, the yin and yang of my character--an issue I no longer fear to confront. The courage to assert my voice on behalf of others serves my clients best because I am invested in the service for my well being and theirs."

Upon reflection, I find my response interesting for two reasons. First, I unconsciously chose to write about a personal challenge that has become a professional challenge over time. Strange enough, my greatest struggle in life is negotiating the principles my parents and family instilled in me with the need to be a strong and independent person - not only for myself, but for those I aim to serve as an attorney. The curious aspect of this dynamic is that until I was forced to articulate this struggle (via answering the above fellowship question), I failed to recognize its key players: traditional notions of Latina/o gender roles and feminism.

What is remarkable to me is that for the past decade I have been engaging in a serious and personally deep negotiation of the conflicting features of Latina/o gender roles and feminism without clearly identifying them. There is no doubt I have had my suspicions from time to time of who my "masked" players are, but sadly I never took the time to properly investigate. Instead, whenever I experienced an inner conflict between the two, I bit my lip, put my head down, and simply carried on. I chose never to question the sources of my conflict.

I attribute this lack of curiosity in part to the power of the traditional Latina/o roles I was raised with. As noted in my response to the question, I understood questioning things as being synonymous with being confrontational. Although I would not have been questioning a male or an authority figure in this instance, to question the conflict within me would still be risking confrontation with something. A woman is patient, and flexible. She works with what she is given. I have this conflict. I am supposed to simply work through it.

This passive line of logic has dramatically changed over time. Furthermore, now that I have identified the masked players in the greatest challenge in my life, I feel more empowered than ever. I am more comfortable and prepared to intelligently confront these challenges. While discussing my response with a colleague, I was comforted to hear her echo many of the same challenges. Although I am sure there are other women out there who work through the same issues, I hope there are some women who do not. I would like to hear their responses and how they negotiate the tension between traditional gender notions of women in a male dominated legal profession.

Women Wednesday - final edition

During the course of this class, we have discussed the intersection between feminism and the law. For the last edition of Women Wednesday, I wanted to call attention to a special organization which has been affecting feminism through the law for the past decade: the Tahirih Justice Center.

The Tahirih Justice Center works to provide free legal representation to women and girls to protect them from gender-based violance and abuse in cases of domestic violence, rape, genital mutilation, human sex trafficking, and more. Tahirih uses pro bono resources to assist immigrant women seeking justice in the United States with a combination of legal services, advocacy, and public education programs. Tahirih also provides holistic social and medical service referrals to help these women become self-sufficient.

Since the start of this organization in 1997, through direct services and referrals, Tahirih has assisted over 9,000 women and children flee abuse with a 99% success record. Financial donations will enable the Tahirih Justice Center to continue protecting and providing care for vulnerable immigrant women and girls. You can make donations here.

For more information please visit: http://www.tahirih.org/

Or watch a youtube account of victim's speaking out about how this organization helped them: http://www.youtube.com/watch?v=zdcDJli13bo&feature=player_embedded

Junk science, child custody and Alec Baldwin

Actors Alec Baldwin and Kim Basinger officially separated in 2000, and Basinger filed for divorce in 2001. Over the next several years, a very public custody battle over their daughter, Ireland, unfolded. On April 19, 2007, TMZ.com published an angry voicemail message from Baldwin to his daughter. In the message, Baldwin called his daughter a "rude, thoughtless little pig" and Basinger "a thoughtless pain in the ass." He subsequently apologized for the outburst on The View.

What may seem like ordinary celebrity gossip has had a much bigger impact. Baldwin recently wrote a book about his custody ordeal called A Promise to Ourselves: A Journey Though Fatherhood and Divorce. As part of his research for the manuscript, Baldwin interviewed Jeannie Suk, a professor of family and criminal law. Here are a few excerpts from the interview:

[Governance Feminism is] the idea that feminism, which once criticized the law from the outside, is today actually in charge in many places in the law — among police, prosecutors, lawmakers, judges, and other legal actors. The feminism that often “governs” today is that strand developed by the legal scholar Catherine MacKinnon and that focuses on the subordination of women by men, particularly in intimate sexual relationships. Her influence on our legal system’s understandings of men and women cannot be overstated. If you talk to police, prosecutors, lawmakers, and judges about domestic violence, perhaps they have not read MacKinnon, but they often subscribe to the premise that men subordinate women through sex and violence.

In the book, Baldwin and co-author Mark Tabb suggest that feminism’s new and unprecedented supremacy across U.S. civil and criminal law (i.e., "Governance Feminism") has ruined the family court system.

Regarding child custody matters, Baldwin contends that courts are skewed in favor of mothers at the expense of alienating fathers. He suggests that fathers utilize Parental Alienation Syndrome to win custody of children. Because of Baldwin’s celebrity and access to media, his book has gained popularity amongst father’s rights organizations.

My concerns center around several issues. First, feminism does not equate to male bashing as Baldwin suggests. Contrary to Baldwin’s views, feminism desires social equality for both sexes. Feminists have also organized to further the rights and interests of women. One of the central interests of women, who are mothers, is the safety of their children. To presume that women engage in child custody disputes to punish fathers as part of a feminist agenda ignores the statistics on the prevalence of domestic violence and child abuse in families. Additionally, men do subordinate women through sex and violence; some of the statistics below demonstrate this in the context of domestic violence/child custody matters.

Second, there are hundreds of thousands of women in the U.S. without access to funds or decent legal counsel that look to the courts for assistance in protecting minor children in custody proceedings. It is often very difficult for them to obtain protection when domestic violence, child abuse, or substance abuse are involved in the custody battle. Further, custody litigation is used as an instrument of the batterers and child abusers to maintain or extend control and authority over their victims after separation. Phyliss Chesler interviewed 60 mothers involved in custody dispute and found that fathers who contest custody are more likely to win than their wives. In 82% of the disputed custody cases, fathers achieved sole custody, despite the fact that only 13% had been involved in child care activities prior to divorce. Moreover, 59% of fathers who won custody litigation, and half of the fathers who gained custody by private negotiation, had abused their wives.

Yet another concern I have with Baldwin's view is the imbalance of power in custody proceedings. Women are fearful of raising the issue of domestic violence and child abuse for fear that they will thereby lose custody of their children. In an article in Family Law Quarterly, Nancy Erickson said:

Battered women’s advocates often note that, in custody cases, the batterer often “looks better” to the court than the victim does because he is confident and calm…. She is still suffering the effects of his abuse and therefore may appear hysterical, weepy, angry or otherwise not “together”.

Officers of the court may be unreasonably suspicious of claims of child abuse and domestic violence in the context of custody/ visitation which can lead to decisions that are made on bad science, misinterpretation of fact and child custody evaluator bias. Many custody evaluators consider the issue of “alienation” more significant than domestic violence in making custody recommendations. As a result, many abused women and their children may find themselves re-victimized by the justice system after their separation.

In an article in the Family Law Quarterly, a survey of 201 psychologists from 39 states who conducted custody evaluations indicated that domestic violence was not considered by most to be a major factor in making custody determinations. Conversely, three-quarters of the custody evaluators recommended denying sole or joint custody to a parent who "alienates the child from the other parent by negatively interpreting the other parent's behavior."

Sometimes it seems that, as feminists, we are always moving in two-steps ahead, one-step back fashion. Assault of an intimate partner is now recognized as criminal behavior. New legislation created easier access to the courts for protection and restraining orders, heightened awareness and established protocols and procedures for prosecutors. The criminal justice system and relevant community services are more focused on the needs of children exposed to domestic violence, and children are recognized as indirect victims of domestic violence.

But changes in the laws relating to domestic violence have also altered the way family courts handle child custody proceedings. Many judges are being asked to consider domestic violence as a significant factor in determining the appropriateness of a violent spouse becoming a custodial parent, or even whether such a parent should have regular, unsupervised contact with children. But sadly, we find that tests to assess questions relevant to custody are completely inadequate on scientific grounds. Claims of some anointed experts about their favorite constructs like "Parental Alienation Syndrome" are fueled by the likes of Alec Baldwin, publicized by the media and then unquestioningly accepted as another legitimate reason to subordinate women by denying them custody of their children.

P.S.: Apparently, Baldwin's daughter has forgiven him in the meantime, as she went with him to accept his two SAG Awards.

Questionable Conduct

As the saying goes, as everything changes everything seems to stay the same. Thus, while it may come as a shock to hear about the story Virginia Thomas, Justice Clarence Thomas’ wife, leaving a voice mail for Anita Hill, the fact is that this is not unexpected. Thomas’ exact statement on the voice mail said, “I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband.”

Anita Hill, now a law professor at Brandeis University, is of course well known for her testimony during Justice Clarence Thomas’ confirmation hearings. Specifically, Hill testified that during her time working with Justice Thomas at both the US Department of Education and at the US Equal Employment Opportunity Commission, Justice Thomas subjected Hill to inappropriate language that amounted to sexual harassment. Hill’s testimony, however, was viewed rather suspiciously because of the timing, contested events, and the inherent nature of sexual harassment claims – the stated reliance on “he said, she said” evidence. Hill, because of her decision to bring these claims at this time was subjected to a polygraph test, which found her to be telling the truth. Justice Thomas, however refused to take a polygraph test, stating that this was a form of “high tech lynching.” Justice Thomas was subsequently confirmed to the Supreme Court.

Recently, the New York Times ran a piece related to Virginia Thomas and her work as a Tea Party Activist. Particularly, the article stated that Thomas’ presence as part of Liberty Central, a group dedicated to “protecting the core founding principles” of the nation, posed a concern related to judicial ethics. The principle concern rests on the fact that Thomas’ activism has raised questions of large, unidentified contributions and whether this has some impact upon Justice Thomas’ activities as a Supreme Court Justice.

The ramifications of Hill’s testimony may include a public awareness of work place harassment, but perhaps a more concrete assessment of the impact of her testimony is the voice it gave to Black feminists. What is clear, however, from Virginia Thomas’ telephone call is that Hill’s testimony and its effects still exist. Moreover, the issues of recusal and Thomas’ activism pose questions not only in a political sense, but also in a feminist sense.

First, it is disconcerting to hear that Virginia Thomas still holds resentment over Anita Hill’s accusations. Despite evidence confirming the story, and the time that has elapsed since the testimony – the question remains, why did she choose to leave that voicemail? Of course, this cannot be answered. But the grave concern here the dynamics of power at play in this context. Virginia Thomas is married to man who is incredibly powerful. She also holds power both as her voice for the Liberty Council and as a Tea Party activist. Regardless of whether Hill’s sexual harassment did exist or not, the fact is that by rehashing her testimony, Thomas has now set a precedent that such harassment can continue years later – through books and voice mails. This undermines any woman’s right to step forward, without the threat that she or he would be subject to ridicule years later. Whether this power dynamic is seen through the annals of Washington or in the frame of a room, it is evidence that power can silence opposition and make it part of the law itself.

Second, as stated in the New York Times article (which features Deborah Rhode), two career families are now the norm and this results in no constraints on the political activities of judicial spouses – specifically in this case. This statement packs in a variety of different concerns, but perhaps it is also goes to show how influential family dynamics can be upon women and men in the larger political sphere. We have discussed this concept of the two career families, and how these dynamics work within the family, but perhaps larger considerations are valid as well. In this case, our judicial system and potential ethical considerations are here. While a woman’s career choice should be considered valid and legitimate regardless of the considerations at play, the choice in this case is dangerous. The danger is the fact that the people (the citizens of the US) have no idea who is donating, the amount that is being donated, and more importantly whether Justice Thomas is being influenced. A two career family may be the norm, and a woman should have the choice to have a career, but not if it means sacrificing ethics to pursue an agenda – especially one that stigmatizes women.

Despite the Thomas’ bitterness, Hill has demonstrated resolute integrity and grace. In this context, perhaps the ultimate losers of this whole ordeal are the women who want to achieve the power that the Thomas’ have, as well as the women who seek to have a voice when such power is overwhelming.