title IX and gender identity and sexual orientation

I'll clean this up soon.

- Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation.

- Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance: Sex-Related Eligibility Criteria For Male and Female Athletic Teams.

Now that women can serve in combat, can they be drafted?

The question came up in one of our classes today.

I ran across this Washington Post piece that discusses it. A 1981 Supreme Court decision - Rostker v. Goldberg - held that women did not have to register for the draft, and that ruling seems to still be in place today.

The Pentagon and the Selective Service, which keeps a roster of prospective male enlistees, say it’s too early to tell.

“Until Congress and the president make a change, we will continue doing what we’re doing,” Richard S. Flahavan, a Selective Service spokesman, said Friday. Namely, that means sticking to registering only male U.S. citizens and permanent residents ages 18 to 25.

It was quite the debate at the time, some men argued that is women could not be registered, then the entire process was unconstitutional. The Supreme Court stated that the fact that women could serve in combat justified their exclusion from the registration:

In a 6 to 3 vote, the Supreme Court ruled that it was acceptable to exclude women. Writing for the majority, Justice William H. Rehnquist determined that “the fact that Congress and the Executive have decided that women should not serve in combat fully justifies Congress in not authorizing their registration.”

In a dissenting opinion, Justice Thurgood Marshall chided the ruling, saying it “places its imprimatur on one of the most potent remaining public expressions of ‘ancient canards about the proper role of women.’ ”

Greg Jacob, the policy director of the Service Women’s Action Network, which advocated for the repeal of the ban on women in combat, said his organization thinks women ought to register with Selective Service.

“Part of equality means women have that shared responsibility,” he said.

Registering for the draft does not means that all women - if drafted - would have to serve in combat I assume, just those physically able. This issue complicates the question of gender equality.

- Women and the Draft in America.

Pay Equity Act Blocked in the Senate

Some fodder for 2302 as we get ready to plunge into the legislature. Story in the NYT, here's the vote, largely party line. The name of the bill is the Paycheck Fairness Act.

The bill would have amended a key piece of New Deal legislation: the Fair Labor Standards Act of 1938. The FLSA established the minimum wage and overtime pay, and prohibited child labor. It applied to individual who were engaged in commerce or the production of good for commerce (note the constitutional justification). The act has been amended heavily, but the most important amendment was added in 1963 when the Equal Pay Act was amended to the original bill. It made it illegal to pay workers lower wages due to gender.

The purpose of the bill was to make it easier for women to investigate whether they are being paid unequally, which allows them to pursue a claim of discrimination. It also made it easier for women to take cases to court. From the NYT story:

Tuesday’s bill sought to bar companies from retaliating against workers who inquire about pay disparities and open pathways for female employees to sue for punitive damages in cases of paycheck discrimination.
We can use this story to discuss a variety of matters related to the class.

- the ideological differences between conservatives - who do not like restrictions on business and tend to be suspicious about claims of discrimination - especially when they involve lawsuits - and liberals - who prioritze equality among all other values and often seek to increase access to the courts as ways of redressing claims of discrimination.

- it allows us a peek at the bill making process (click here for detail on the bill - from Thomas).

- we can see the filibuster in action - or at least what passes for filibusters today. Senate procedures, as they exist today, require 60 votes for bills to be considered on the floor of the chamber. This is a supermajority and empowers a minority. They can't get things passed, but they can make it impossible for anyone else do either. The bill only received 52 votes, just a mere simple majority. There have been many such votes recently, which leads to questions about the viability of the current Senate.

- the vote was almost party line. All Republicans votes against bringing it to the floor. All but one Democrats voted in favor of it. This helps bolster the case that parties are increasingly polarized.

- and since its an election year there is speculation that Democrats only brought this up - knowing that it would be filibustered - to put Republicans on the record as being opposed to equal pay. Perhaps this becomes an election issue.

Can anyone explain "congruent and proportional" to me?

A good question from a 2301 student wrestling with this week's question on Coleman v. Maryland. The plurality decision in the case refers to this rule in its decision that Coleman's suit against Maryland - in federal courts - could not go forward. I'll try to provide a reasonable answer below. I also advise that you read the following article in the NYT for background.

First, "congruent" means the same as, and "proportional" means corresponding to. Here's a specific definition of the test from Wikipedia: "all legislation enacted under section 5 of the Fourteenth Amendment must be "congruent and proportional" to the unconstitutional harm it seeks to remedy." Congress can't create a right and use its enforcement powers to impose it on the states. Remember that the 14th Amendment provides the national government the ability to negate state actions that deny equal protection to "persons within its jurisdiction." Section 5 states the following: "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." For more info here read: Congressional Power of Enforcement.

As I understand it, the congruent and proportional test is a way to determine what enforecement mechanisms are and are not appropriate. Recently, it has been used often to determine whether civil remedies (lawsuits against the states in federal courts) are appropriate given the violation claimed by a litigant. Was someone denied a constitutional right - if so the suit goes forward - if not the suit is denied. So this test is tightly connected to the question of state sovereign immunity.

The lawsuit under review in US v. Morrison failed the test and was denied, but those reviewed in Tennessee v. Lane and Nevada v. Hibbs passed it, so they were upheld.


Second, this is an example of test that the Supreme Court establishes from time to time to not only justify a specific decision, but to it in a way that provides a (possible) guideline for future courts to rule on similiar cases. Other examples include the separate but equal doctrine, and the Lemon Test. If you feel ambitious you may want to read through this argument that the court is increasingly reluctant to establish such tests, and a comment here.

Third, the congruent and proportional test was established in the case of City of Boerne v. Flores. As it turns out - fortuitously - Boerne was a reaction to the passage of the Religious Freedom Restoration Act, which itself was passed in reaction to the Smith case we discussed earlier regarding peyote. This was the subject of a previous written assignment as you well know (or should know). RFRA attempted to revive a still different test - the Sherbert Test - which among other things stated that a compelling state interest must be furthered whenever a sincere religious belief is violated by the government.

The decision in Smith changed this rule and made religious liberty subject to generally applicable laws. In RFRA, Congress attempted to revive the more stringent standard, but the Boerne case allowed the court to strike that down - and in doing so they reminded Congress that the power to interpret the Constitution belongs to the court.


Finally, this test is controversial. Not everyone on the Supreme Court abides by it, or has the same attitude towards what rights may or may not exist beyond those that are clearly listed in the Constitution. In this case the question has to do with the extent of gender discrimination. This is a topic I hope 2301s are very familiar with by now.

I hope this review helps. Don't get too bogged down in this nuance as you complete the assignment.

Feeling ambitious? Read this: Congruence and Proportionality for Congressional Enforcement Powers: Cosmetic Change or Velvet Revolution?

A student argues that we need anti-harrassment laws

Obscene Incitement and Clear and Present Danger:

The Need For Anti-Street Harassment Laws

Should there be a law protecting women from street harassment? Many women believe so.

Street harassment falls under the limitations set by the Supreme Court on first ammendment freedom of speech including obscenities, incitement, and clear and present danger. These limits are spelled out by the Supreme Court as "lewd and obscene, the profane, the libelous, and the insulting or 'fighting words.'" (Supreme Court). As defined by the Supreme Court fighting words are, "by their very utterance inflict injury or tend to incite an immediate breach of the peace." (Supreme Court). These limitations were set in cases such as Chaplinsky v. New Hampshire and Miller v. California to name a few.

Unfortunately, although shown to increase violence against women, street harassment is not taken seriously by law enforcement as noted in an article entitled, “Legal Analysis” written by an unnamed representative of the Hollaback! network. The article states, “...Laws already on the books that prohibit intimidation and harassment are rarely interpreted to address the harms of street harassment experienced by women.” (Hollaback!).

For this reason laws needs to be set in place to specifically address the issue of street harassment towards women. As with any law, predefined limiting principles would need to be set in order to prevent abuse. Street harassment should be defined as sexually explicit, demeaning, dehumanizing, and/or aggressive language directed at individuals including minors and adults who, in turn, feel threatened or intimidated and may be in danger of resulting violence physically and/or sexually.

http://www.ihollaback.org/resources/legal/legal-analysis/

http://www.freedomforum.org/packages/first/curricula/educationforfreedom/supportpages/l04-limitsfreedomspeech.htm

http://www.freedomforum.org/packages/first/fightingwords/casesummaries.htm#chaplinsky

A potential gender discrimination issue?

Should, or can, street harassment of women be addressed by law? Is cat calling an act of free speech?

Supreme Court tosses out lawsuit against Maryland based on Family and Medical Leave Act - Cites State Sovereign Immunity

The case is Coleman v. Maryland Court of Appeals.

From ScotusBlog: "Justice Kennedy, the Chief Justice, Justice Thomas and Justice Alito hold that suits against the states under the self-care provision of the Family and Medical Leave Act are barred by sovereign immunity."
The Washington Post points out that in addition to the general question whether the national government can authorize lawsuits against the states, was the issue about how this ruling affected women particularly, since they are more likely to need to spend time from work following child birth:

Ginsburg said the majority missed the point that the act in its entirety shields women from discrimination.

“The best way to protect women against losing their jobs because of pregnancy or childbirth, Congress determined, was not to order leaves for women only, for that would deter employers from hiring them,” said Ginsburg, who was joined by Justices Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

“Instead, Congress adopted leave polices from which all could benefit.”

Ginsburg, who had a reputation as a women’s rights advocate before she joined the court, pointed out that Tuesday’s decision affects only government employers and that the act still “applies, undiluted, in the private sector.”

This fits this week's 2301 subject matter perfectly. It touches both on civil rights - as related to gender - and the constitutionality of the principle enforcement mechanism the lawsuit - especially the lawsuit in federal court against the offending state. It also fits previous discussions of federalism. The principle consequence of this decision is a limit on the applicability of the Family and Medical Leave Act.

Is gender segregation in schools a good idea? Is it legal?

An interesting debate in the NYT: Single Sex Schools: Separate but Equal?

Justices Rule for Wal-Mart in Bias Case

From the NYT, perhaps the most consequential decision of this Supreme Court term:

The Supreme Court on Monday threw out the largest employment discrimination case in the nation’s history. The suit, against Wal-Mart Stores, had sought to consolidate the claims of as many as 1.5 million women on the theory that the company had discriminated against them in pay and promotion decisions.

The lawsuit sought back pay that could have amounted to billions of dollars. But the Supreme Court, in a decision that was unanimous on this point, said the plaintiffs’ lawyers had improperly sued under a part of the class action rules that was not primarily concerned with monetary claims.

The court did not decide whether Wal-Mart had in fact discriminated against the women, only that they could not proceed as a class. The court’s decision on that issue will almost certainly affect all sorts of other class-action suits, including ones asserting antitrust, securities and product liability violations.
From Scotusblog, an analysis of the opinion, and a link to relevant documents related to the case.

Is cheerleading ( or in this case not cheerleading) protected free speech? And how do we know what is and isn't a frivolous lawsuit?

These question stem from an uncomfortable case from Silsbee that the Supreme Court refused to review.

- Raped Cheerleader Told by Courts to Go Home and Be Quiet

- Cheerleader who wouldn't root for assailant loses

- Court OKs booting of cheerleader who wouldn’t cheer for rapist

- Cheer for your attacker, or else!

Here's the decision from the 5th Circuit Court of Appeals:

- John Doe, et al v. Silsbee Indep School District

Iconic Photograph Censored.

Hasidic Paper Removes Hillary Clinton From Osama Picture.

Gender Equity on Campus

Two stories:

1 - Do colleges create a hostile sexual environment for women?

2 - Is Title IX - gender equity in collegiate sports - deceptive?

One of the Roots of Gender Discrimination?

I was hoping I'd be able to work Charlie Sheen into a post, here's my chance.

Anne Holmes wonders if the comparatively light treatment Sheen is, and has been, getting over his abusive towards women is indicative of a general contempt that exists in the broader society. Perhaps this adds to this week's civil rights discussion of civil rights. Perhaps we condone certain behaviors or treatments because they fit certain assumptions we have about groups:

These assumptions — about women, about powerful men, about bad behavior — have roots that go way back but find endorsement in today’s unscripted TV culture. Indeed, it’s difficult for many to discern any difference between Mr. Sheen’s real-life, round-the-clock, recorded outbursts and the sexist narratives devised by reality television producers, in which women are routinely portrayed as backstabbing floozies, and dreadful behavior by males is explained away as a side effect of unbridled passion or too much pilsner.

Women in America

This story fits with both 2301 and 2302 this week. The Obama Administration has released a report called : Women in America: Indicators of Social and Economic Well-Being. From the White House website:

In support of the Council on Women and Girls, the Office of Management and Budget and the Economics and Statistics Administration within the Department of Commerce worked together to create the Women in America (pdf) report which, for the first time in recent history, pulls together information from across the Federal statistical agencies to compile baseline information on how women are faring in the United States today and how these trends have changed over time.
It is apparently the first such survey since one commissioned by the Kennedy Administration. Gail Collins reports on the survey, which the Atlantic summarizes here:

Collins runs down some interesting highlight while looking back at how far from the last survey, when Eleanor Roosevelt prepared a similar report for John F. Kennedy. At that time, only a little more than half of all federal civil service jobs were open to women for example, and "it was perfectly legal to refuse to hire a woman for a job because of her failure to be a man." The median age for marriage for a woman was 20, Collins says. While women currently still make on average 20 cents less on the dollar than men in comparable positions, men and women are increasingly sharing the role of supporting the family economically, and that's where the potential for progress on unequal pay lies: a turning point came on "the unknown day when the average American couple started planning their futures with the presumption that there would be two paychecks."

Note the item in bold above:

At the time, there were 454 federal civil service job categories for college graduates, and more than 200 were restricted to male applicants. It was perfectly legal to refuse to hire a woman for a job because of her failure to be a man, or to refuse her credit unless she had a husband to co-sign her loan. The median age for marriage for a woman was 20, and the only job open to most women that involved a chance to travel was flight attendant.
I found this part of Collins' story also telling:

We’re a long way from the Eleanor Roosevelt Commission on the Status of Women, which was formed when there were no women on the White House staff doing anything more impressive than typing or cake decoration. “Men have to be reminded that women exist,” Mrs. Roosevelt tartly told reporters when the all-male list of top Kennedy administration appointees was released.
One of the justifications for affirmative action is that they very fact that members of an excluded group are placed in a particular position creates openings for others.

Regarding the Right to File Class Action Lawsuits

From Business Wire:

The United Food and Commercial Workers International Union (UFCW), AFL-CIO, and Change to Win have filed a joint amicus brief to the U.S. Supreme Court supporting the plaintiffs in the Dukes v. Wal-Mart Stores, Inc., sex discrimination case. A joint statement follows:


“For more than 45 years, American workers have sought protection from the courts for equal treatment in the workplace. Workers have joined together to remedy widespread discriminatory workplace practices through class action proceedings and by applying the nation’s civil rights standards to their workplaces. Today, Walmart is attempting to undo that standard by claiming its female associates have no right to appeal for justice as a class.

In our amicus brief to the U.S. Supreme Court, we ask the court to uphold the fundamental pillar of the Civil Rights Act and to ensure that the class action process remains open to workers in all industries.

It continues...

- For more information on the Dukes v. Walmart Stores case, visit www.walmartclass.com

Standing, Class Action Lawsuits and Wal-Mart v. Dukes

A case involving accusations of gender discrimination at Wal-Mart is also allowing the court to question the very practice of bringing class action lawsuits forward. Once again the court is flirting with the idea of limiting standing, the right of people to demonstrate to the court that they have a legitimate reason to take a case to the court.

- ScotusBlog: Walmart v. Dukes.
- ScotuBlog: This Week at the Court.
- Wikipedia: Walmart v. Dukes.
- ClassActionBlawg.
- Wikipedia: Class Action.
- Findlaw: Gender Discrimination

Coverture

I just ran across a story with the following link to a definition of "coverture."

. . .in most nations. The state or condition of a married woman. During coverture, the being of the wife is civilly merged, for many purposes, into that of her husband; she can, therefore, in general, make no contracts without his consent, express or implied. To this rule there are some exceptions: she may contract when it is for her benefit, such as to save her from starvation. In some cases, when coercion has been used by the husband to induce her to commit crime, she is exempted from punishment.
In 2301 we will cover civil rights in a month or so. This fits with our overview of gender discrimination.

On that note, I heard an interesting related story regarding the founding of Houston. The conventional story is that the Allen Brothers founded the city. The revised version is that is was actually done by their mother, she came up with the idea of a port city on the gulf and had the money to do it, but law did not allow her to sign contracts. Only her sons could. That's why they did it.

- Wikipedia: Coverture.

The Lilly Ledbetter Fair Pay Restoration Act

The first major piece of legislation of the Obama Administration has been signed and it overturns a decision made by the Supreme Court last year. This an interesting example of a check and balance not written in the Constitution, but facilitated by its design.

In the court case, Ledbetter's lawsuit claiming gender discrimination in pay was denied because 5 out of 9 justices argued that she filed the lawsuit later than the time allowed in Equal Pay Act. They contended that the 180 day limit ended when she received her first pay check. That was when she should have noticed the pay disparity and repoprted it. The dissenters held that the deadline was refreshed everytime she received a pay check. Civil rights violations are not a one time phenomenon, but recur.

The opinion of the justices is moot now however because the law now explicitly states that the statue of limitations is renewed every time a a unique discriminatory act--like the act of giving someone a pay check--occurs.

For my 2301 classes: here's a webpage that contains political dialogue about the issue. In a superficial sense, this pits the liberal civil rights, women's equity crowd against the conservative leave business alone crowd.

For my 2302 classes: here's the path the bill took on its way to becoming law.

What a Liberal Decision Looks Like

I've been trying to be more clear in lectures about what liberal and conservative decisions look like.

One distinction has to do with civil rights. Since liberalism is grounded primarily in the principle of equity, they tend to want to expand civil rights protections. Civil rights of course is based in the United States on the abstract concept of equal treatment before the law--without any hint about what categories might be used to justify unequal treatment and whether public safety and health and the rest might be adversely affected. We discussed proposals to require the elderly to take driving tests probably not violating equal protection because advanced age can impair driving ability.

As a current example in the news, here is a liberal proposal from the U.S. House of Representatives: The Employment Non-Discrimination Act.

Note the conservative argument against it: ". . . Mark Souder, R-Ind., argued that, because of the bill, "religious rights will now be trumped by sexual rights." Calling the bill a disaster for religious bookstores, which could be required to hire gay workers, he said the measure invited litigation and set "precedents that we will regret."

I highlighted what I think is the key part of their argument. The freedom of owners of religious bookstores to hire who they want, based on their traditional understanding proper sexual behavior. This hits both individual economic freedom and traditional values. Both are central to conservatism. It also touches on increased use of the courts--litigation--as a means of redress, which is another sore spot for conservatives.

A Star is Born?

As predicted once Samuel Alito was confirmed, the Supreme Court continues its march to the right, but no one could have predited that the beneficiary would be an increasingly irritated Ruth Bader Ginsburg--a superstar in the making.

In Ledbetter v. Goodyear Tire & Rubber Co., Inc. the justices determined (by the unsurprising 5-4 breakdown) that a woman's sexual discrimination suit against her employers was not filed in a timely fashion and was dismissed. The dispute concerns when exactly the discriminatory act happened.

Pundits argue that this decision--along with the ruling on partial birth abortion--was a consequence of Sandra Day O'Oonnor's retirement and replacement with the more conservative Alito. Ruth Bader Ginsburg is the court's lone female and is none too pleased with that fact:

"The word I would use to describe my position on the bench is
'lonely,' "Ginsburg told USA Today this year. Asked what
difference O'Connor's departure would make, Ginsburg said
only: "This term may be very revealing."

She sees this as a blow to her efforts, shared by O'Connor, to make it more difficult to treat women unequally before the law. Commentators made note of the fact that he not only wrote the dissenting opinion, she read it from the bench--which is how SC Justices show that they're ticked off. They predict that her stature may increase as a result. Expect more dissents read from the becnh.

The political fallout--if there is one--will be interesting to watch. Will women shift more to the Democrats in order to bolster their civil rights? Nothing mobilizes like loss. Polls should tell us whether this is occurring relatively soon. Democrats are already pledging to change the law in question to allow for such lawsuits to go forward, a direct responce to Ginsburg's plea.