Tagged: gender

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Nine to Five: A Mini-Treatise on Gender Discrimination at Work

 

Introduction

Joanna Grossman’s Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace, a collection of timely and lively essays from her online columns on Justia’s Verdict and Findlaw’s Writ, tracks legal and social developments affecting women over the course of fifteen years. Grossman’s reach in this mini-treatise is broad and deep. She covers topics ranging from legal protections for men coaching women athletes, sexual harassment in the television writers’ room, and baffling court opinions holding that lactation is not “pregnancy-related” to former presidential candidate Mitt Romney’s (in)famous “binders of women.” Grossman also makes recommendations for addressing such stubborn problems as pregnancy discrimination and the wage gap. But, for my money, the structure of the book is particularly illuminating, as it highlights a major failing in courts’ analysis of sex discrimination. Read More

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Wedlocked or Wedlinked? Will Same-Sex Couples Remake Marriage or Will They Demonstrate Why Others Should Abandon it?

Katherine Franke’s Wedlocked is a model of critical scholarship.  The book’s motto is “be careful what you wish for” as it ponders the potential negative consequences of a newly granted ability to marry.  Written during the ten year period leading up to Obergefell, the book examines comparisons with the impact of legal marriage on freed slaves in the aftermath of the Civil War.  Franke has unearthed a largely untold story of the hardships African-Americans endured because of marriage, and because of the sudden imposition of a new system at odds with long established norms.  She carries the account into the twentieth-first century, noting the ways in which marriage legitimizes some families while it continues to disadvantage others, particularly in communities of color.  Throughout, Franke maintains her outsider stance as she chronicles wrenching stories of injustice, questions whether it is possible to overcome the legacy of racism and homophobia, and worries that the movements for sexual liberation and gender equality will be subsumed by the emphasis on marriage.  The result is a provocative and original account that in many ways is as interesting for what it leaves unsaid as for what it addresses directly.

 

The two best parts of the book are Franke’s reclamation of nineteenth century marriage cases and her musing at the book’s end about whether marriage is really well-suited for same-sex couples.  Franke has dug deeply into the archives, and come up with fascinating accounts of the legalization of slave marriages.  The most thoroughly documented material addresses the efforts of the Union Army, desperate for troops by 1864, to enlist African-Americans to join the fight.  The Emancipation Proclamation had freed only the slaves in the seceded states, and the Union promised emancipation for the slaves in the states, like Kentucky, that had not seceded.  When slaves left to join the military, however, their families faced often brutal retaliation from slave owners.  The families began to flee with the soldiers, but this, too, left them vulnerable, and when a Union Commandant evicted the families from Fort Nelson, Kentucky, in November 1864 without adequate food or clothing, many died of disease or exposure.  Congress, shocked into action by the images of children dying in their mothers’ arms (and the prospects of losing needed enlistments), voted to free not only the soldiers, but their wives and children, with compensation to the slave owners who were still part of the Union (p. 43-44).  While African-American slaves had not been able to marry, women who could establish that they were in a marriage-like relationship with an enlistee could obtain their freedom.  Franke reports, however, that marriage – and the freedom that went with it – exposed the women to new risks.  Even if their masters did not retaliate directly, they no longer had to support them, the Union Army provided little protection or assistance, and managing on their own was perilous.  Franke concludes with two contrasting paragraphs.  The first reflects her skepticism, as she emphasizes the “unintended harms” that can occur when the law gets too far ahead of social attitudes.  To confer a right to marry on people who previously could not marry, and to do so without “taking into account the underlying bigotry that caused their subordinate status, had the unfortunate result of leaving the newly favored group worse off than they were before they were recognized as rightsholders” (p. 49, emphasis in original) In short, marriage can be a problem rather a solution.  Yet, in the next paragraph, Franke acknowledges that the freed slaves did not necessarily see it that way.  While the law in effect adopted a form of common law marriage that tied legal significance to cohabitation, the former slaves were so eager to participate in marriage ceremonies that Kentucky military officials reported running out of marriage license forms.  Marriage was also a valued right for families who had been denied official recognition of their relationships.

 

The middle part of the book continues mining the historical records for marriage cases, and here Franke finds a tantalizing incomplete historical record.  In many parts of the South, prosecutions for bigamy, adultery and fornication were brought against African-Americans with no comparable cases against whites.  She assumes that these cases were part of an effort to use the criminal justice system to reacquire the labor of freed slaves, sending the men off to prisons that then leased out the prisoners’ labor under conditions often worse than slavery.  In other circumstances, however, African-American women brought actions against men who left them for other women.  Franke surmises that the women may have been using the legal system to identify a man responsible for support in an effort to protect their children from being seized and apprenticed to whites ready to put them to work in the fields.  Franke treats these cases as examples of the use of marriage as a trap for the unwary; she observes that the law that automatically legalized slave marriages was a “double-edged sword” (p. 132).  The mostly illiterate freed men and women did not necessarily realize that if one relationship ended and another began, they were guilty of the crime of bigamy.  Yet, many slaves did have multiple families as slaveowners had involuntarily separated couples and some of these couples wished to be reunited when slavery ended, setting up potentially painful confrontations.  Moreover, in the years afterward, freed men and women who wished to enter into new relationships were often not aware of the need to end an older union and, even if they knew about the law, did not necessarily have the resources (and often lacked the grounds) to get a formal divorce.  Franke uses these descriptions to draw parallels to gay and lesbian couples who married in the early adopter states such as Massachusetts only to find it difficult to divorce because of their home state’s refusal to recognize their marriage and their inability to meet the residency requirements for divorce anywhere else.  California couples found themselves in similar predicaments if they entered into domestic partnerships that were automatically converted to marriage as state laws changed, and the couples did not opt out (p. 146).  Franke observes that the “full implications of being automatically married were quite devastating for many black people” (p. 133) and she fears that same-sex couples may also find that marriage law may subject them to oppression from unsympathetic courts.  Her objection is that marriage is a “complicated vehicle through which to address the injustice of racism and homophobia” and that “the freedom to marry risks collapsing into a compulsion to marry” (p. 162).

 

This middle section of the book is less satisfying the initial and ending chapters.   Part of the reason is that while developments during the Civil War are well-documented, with newspaper accounts, congressional debates and letters from the participants providing some of the backstories, the court files after the war include no such details.  Franke is left to guess at the motivation of the parties and she cannot fill in the full context of the cases.  Moreover, as she recognizes, the parallels with the modern position of same-sex couples cannot be exact.  The problems that a lesbian doctor faces, if she is stuck in a marriage in Connecticut because of the civil union she entered in Vermont, are not really comparable to being shipped off to a chain gang and Franke says as much.   In both cases, the difficulties are partly ones of transition from an oppressive system to a not fully developed new one.  The real issue, which occupies the latter part of the book, is deciding what the new system should look like.

 

Franke’s final chapters are intriguing as an exploration of what happens now that marriage equality is at hand.  She acknowledges that the backlash has been less than she feared (though she documents numerous examples showing that it persists) and she notes the risk that same-sex couples’ marriage will be held up as further reason to disparage the less stable relationships of African-Americans and other marginalized groups.  Her accounts of gay and lesbian efforts to adapt marriage to their needs are insightful; she describes, for example, Fred and Melvin, who enlist a surrogate to have a child they intend to raise together.  They marry when the child is seven.  Fred is more interested in parenting than Melvin, however, and they enter into an agreement that if they divorce, Fred would have primary custody, and Melvin would have limited visitation and support equivalent to no more than 25 per cent of their combined responsibility for the child (pp. 220-21).  Such an agreement is almost certainly not enforceable in court and Franke wonders why couples who do not want the obligations associated with marriage are so eager to participate in the institution.  As with African-Americans, she acknowledges the importance of access to an institution that symbolizes full recognition and equal legal rights, but questions whether marriage can ever really address the needs of same-sex couples and, indeed, whether it should retain its ability to channel sexual activity for anyone.

 

This is the true subtext of the book.   Franke’s marriage skepticism pervades the volume; yet, it is couched in parables about unforeseen perils and the inability of a marriage-focused agenda to combat racism and homophobia.  The question her outsider account shies away from is a true insider one; what is marriage for?  Instead, her descriptions of marriage sometimes sound like they might have been authored by the Obergefell dissenters.

 

Franke, for example, tells the cautionary tale of Beth and Ruth.  Beth earned considerably more than Ruth.  During their cohabitation, Beth agreed to pay 80% of their combined expenses, while Ruth promised not to claim a right to Beth’s assets if they should split.  The two later married and divorced without signing a premarital agreement.  When they split, the judge, who had never before handled a case involving a same-sex couple, insisted on dividing not just their savings during the marriage, but their accumulation of assets during their cohabitation, a period that included time when Beth was married to someone else.  Franke objects to the judge viewing their relationship through a “heteronormative lens” and queries whether “this act of translation” does “violence to Beth and/or Ruth, or for that matter to lesbian relationships more generally?”  (P. 213)

 

One wonders, though, why Franke’s advice to Ruth isn’t to appeal and how exactly Franke would decide the appeal if she did.  The point of an appeal would be straightforward: the trial court applied a legal standard that does not apply to heterosexual spouses and is almost certainly wrong as a matter of law.  Courts ordinarily treat property accumulated before the marriage as separate property however long the parties lived together, and given that Ruth and Beth appear to have had an express agreement not to claim each other’s property as a result of the cohabitation, the appeal appears to be an open and shut matter.  Problems of transition, whether in the aftermath of slavery or the advent of marriage equality, are inevitable; it does not necessarily say much about what marriage should become in the new era.

 

Franke hints at, but does not fully engage the latter question (nor does she give many clues to how exactly she would write a decision in Ruth’s favor).   In calling the result “heteronormative,” she suggests that marriage still rests on the exchange between a man with assets and a woman made vulnerable by her assumption of domestic responsibilities, and that same-sex relationships do not necessarily rest on the same exchanges.   The question she does not ask is whether these assumptions are still appropriate for anyone’s relationships.   What has made marriage equality possible is the move away from marriage as an intrinsically gendered institution.  Kennedy’s majority opinion in Obergefell, whatever one thinks of his paean to marriage, acknowledges that the decision is possible only because of the dismantling of gender inequality.   The conservative dissenters, in contrast, opposed the result because of their insistence that marriage retain its intrinsically gendered nature as a way to deal with the consequences of human reproduction.  Marriage equality could command the support of a majority of the Supreme Court because of the rejection of that view.

 

Moreover, heterosexual couples are struggling, in ways not so different from same-sex couples, with the question of what marriage means in an era gender equality.  Let us go back to Beth (who flips homes and has two children from a prior marriage) and Ruth, a union electrician who cycles in and out of the labor market.  The two could easily be named Beth and Rick.  Franke’s insight that marriage is a bad deal for Beth, who in her account both earns the higher income and takes primary responsibility for the children in the home, is right and I have argued elsewhere (with Naomi Cahn in Marriage Markets) that this is an important reason why women like Beth are not marrying the fathers of their children.   Moreover, for Beth this is a second marriage where one of her most important concerns ought to be to preserve her assets for the children of the first marriage.  This is the classic type of case where a premarital agreement is appropriate, and one suspects that as same-sex marriages become normalized, so too will same-sex prenups.

 

The larger question, however, is what purpose (if any) marriage still serves for such couples and whether the conversation between same-sex and different sex couples working through the same issues will enrich or (as Franke seems to suggest) impoverish the discussion.  Franke is right that this conversation today is deeply gendered.  Rick, the electrician, for example, is likely to be seen as mooching off Beth, even if he cleans house and makes gourmet dinners, while the judge seemed to place Ruth in a housewife’s role whether or not she took on more than half of the couple’s domestic responsibilities.   Sociological studies of marriage seem to indicate that it works well for two career couples who can afford to hire domestic help and for traditionally gendered breadwinner, homemaker relationships; it does not seem to work well where one of the spouses is both the primary caretaker and the more reliable breadwinner.  Relationships like that between Beth and Ruth (or Beth and Rick) pose important challenges for society more generally.

 

At the end, therefore, while Franke’s volume offers a compelling critical account that addresses “the perils of marriage equality,” it does not really try to engage the question of what role marriage should play.  To be sure, Franke would dismantle much of it, particularly the insistence on monogamy and the restrictions on sexuality associated with the institution.  The harder issue is the association with children.  Here, Franke’s critical account is telling.  The real problem for African-American families gaining freedom in the Civil War era was the crushing impact of poverty and racism.  Franke rightly criticizes the failure of the Union, eager for the enlistees’ services, to provide for their vulnerable families.  Yet, for Franke, the Union obligation should not have rested on marriage; it should have rested on the need to address the poverty and racism that affected the entire group of freed and not yet freed slaves.  In the nineteenth century, however, the principle method of family provision depended on the combination of male wages and the identification of “legitimate” families entitled to share in these wages.   Progress for African-Americans accordingly depended either on their inclusion in the mainstream system, however much we might like to replace that system with something else, or development of a new, more racially appropriate system, that even if more consonant with the freed slaves own values, was likely to be stigmatized in accordance with the racism of the era.  In short, there were no good choices.

 

LGBT couples today are in a somewhat different position, in part, because marriage is no longer compulsory or universal for anyone.  It nonetheless remains a way of linking parents and responsibility for children and commanding community support for family undertakings.   Franke would prefer a system that does not depend as much on marriage and so would many of us.  She may be right, for example, that marriage promotion efforts stand in the way of greater recognition of the crushing poverty that has become a consequence of a more unequal society.    Encouraging the parents of these children to marry each other is likely to be as ineffective as it is misguided; directly addressing the racism that undermines these communities offers considerably more promise.   On the other hand, one thing that does separate married couples from cohabitants is shared (and legally enforceable) responsibilities to children.  Same-sex couples who adopt see themselves as two equal parents in their own eyes and before the law.  Similar couples, who take on parenting relationships without the formal sanction of either marriage or adoption, are more likely to disagree about their parenting status if the relationship ends.   Couples like Beth and Ruth will be more likely to manage their financial affairs through express agreements, whether inside or outside of marriage, as same-sex unions become more routine.  The much more telling question is the commitment couples like Fred and Melvin make to their children.  Marriage today has become an institution premised on formal equality.  Both spouses are held to equal rights and responsibilities for children born into the union even when, like Fred and Melvin, one parent takes on much more of the emotional and practical responsibility for children.  Adults should be free in the new era to design relationships of their choosing, much as Franke would have them do.  The question for the rest of us, however, is whether there is still a need that for institutions that guide the meaning of parenthood.  That question is not part of Franke’s inquiry.

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Is Marriage Equality A Zero-Sum Game?

Katherine Franke’s Wedlocked offers a provocative and cautionary tale about marriage.  Drawing on the decidedly mixed experiences of African-Americans who gained the right to marry following the Civil War, Franke argues that, for gays and lesbians, pursuing freedom and equality through marriage is risky business. Access to marriage, Franke suggests, is likely to be a zero sum game, and achieving it may do more harm than good — both for the lesbians and gay men who embrace it and for those it leaves behind.

The historical chapters of Franke’s book are original and compelling. She shows how the intertwining of marriage and emancipation unleashed a racist backlash during and after the Civil War – a backlash that increased the vulnerability of African American women and children, and conscripted many women into gendered roles that they had little interest in inhabiting.  Franke also shows how the right to marry facilitated coercive state intervention in the intimate lives of the newly emancipated citizens  through aggressive enforcement of bigamy, fornication and adultery laws.  As Franke explains: “Once married, many freed people learned the hard way that marriage and rules and that breaking those rules could be very costly, if not deadly.”  That these interventions were often initiated by other members of the African-American community only exacerbated their negative impact.  Franke’s rich historical analysis demonstrates convincingly that, for African-Americans after the Civil War, the right to marry was a Faustian bargain.

Franke’s efforts to apply this history to the contemporary marriage equality movement are somewhat less convincing. To begin with, those efforts are complicated by the significant and rapid developments that took place during the time it took to write the book. To her credit, Franke acknowledges that the lesson she initially intended to draw – that the success of the marriage equality movement would unleash a backlash of homophobia similar to the post-Civil War backlash against African-Americans — has not come to pass.  Instead, the views of the public on same-sex marriage — like the views of President Obama – have evolved.  The Supreme Court’s Obergefell decision (handed down after the publication of Franke’s book) both reflects and is likely to accelerate this evolution.

So Franke focuses on several other lessons. First, she argues that marriage may have negative consequences for the gay and lesbian couples who opt into it. Second, she claims that marriage may have negative consequences for those members of the gay and lesbian community who choose not to marry and, more generally, for gay identity as a whole.  Third, Franke suggests that the success of the marriage equality movement may have come at the expense of other subordinated groups, particularly African-Americans.  Although Franke has interesting things to say about all three claims, I find her second and third lessons more compelling than her first.

Franke’s first claim is that marriage harbors disadvantages for the same sex couples who succumb to its lure. She argues that marriage provides a gendered script that fits poorly with the realities of same-sex relationships. In particular, she claims that the financial sharing rules that govern the formation and, more importantly, the dissolution of marital relationships are at odds with the expectations of many gay couples, and that efforts by gay spouses to “opt out” of these sharing rules may have negative consequences for women in more traditional, heterosexual marriages.

As a family law professor, I find these concerns unconvincing for several reasons. For one thing, they appear to be based on an outdated understanding of the laws that govern marriage and divorce.  Under the current no-fault divorce regime, the sharing obligations that accompany the dissolution of a marriage are quite thin.  Post-divorce financial sharing (via alimony or spousal support) is the exception, rather than the rule, and long-term support is extremely rare.  And while divorce statutes in almost all states provide for the equitable (but not necessarily equal) distribution of marital property, this generally applies only to property acquired during the marriage and it does not include professional degrees or other human capital assets.  As a result, most divorcing couples have little property to divide.  The most robust family sharing rules today are those that require parents to support their children financially, and those obligations are no longer tied to marriage in any meaningful way.

Perhaps more important, the sharing obligations that are tied to marriage operate as default rules, and couples are generally free to contract around them, either at the time they enter into marriage or at the time a marriage ends. Franke is correct to point out that some states require such opt-out agreements to be in writing (as is true for other types of important contracts), but Franke mischaracterizes the current legal regime when she suggests that gaining marriage rights entails “surrendering the breakup of your relationship to the governance of rules set by the state rather than the ad hoc improvisation that same-sex couples used before they were able to marry.”  Both same-sex and opposite-sex couples are free to negotiate and to improvise, whether or not they decide to marry. To be sure, these negotiations take place in the “shadow” of the law’s default rules.  And what marriage does is switch the default position – from the absence of any financial sharing unless a couple specifically opts to share, to some time-limited sharing, unless a couple expressly agrees otherwise.  To this extent, marriage may improve the bargaining position of a financially dependent spouse at the time a relationships ends, but that is not the same thing as being tied to a gendered script or surrendering the terms of your break-up to the state.

I am similarly unconvinced by Franke’s suggestion that allowing gay men and lesbians to contract out of the default rules of equitable distribution and support “would threaten to undo decades of feminist reform of the law of marriage.” While some feminists have pushed for greater sharing of the financial gains and losses associated with marriage, these efforts have not fundamentally altered the “clean break” philosophy of modern divorce law, and they have generally been accompanied by a healthy respect for the role of voluntary agreements.  Moreover, this argument sounds disturbing similar to claims made by opponents of same-sex marriage that allowing gay couples to marry would somehow undermine their own, heterosexual unions.  In both contexts, the argument seems misplaced.

More convincing is Franke’s second argument that the availability of marriage will disadvantage gay men and lesbians who choose other forms of intimate relationships. As she puts it:  “Gaining the right to marry risks bringing with it the expectation that all in the community conform to traditional notions of coupling, and can have the unintended consequence of making the lives of lesbian and gay people who aren’t in traditional relationships more precarious, not less.”  This is an important concern, and while Franke is not the first to raise it, her historical analysis adds a powerful dimension to the argument.  For example, she shows how, in the aftermath of the Civil War, the newly-won right to marry morphed into a duty to do so, and African Americans who remained in less formal, or more fluid intimate relationships often paid a steep price. Franke suggests a disturbing parallel in recent, post-marriage equality efforts by some jurisdictions to automatically convert existing domestic partnerships into marriages and by some employers to eliminate or limit to married couples benefits they previously extended to non-marital partners.

Franke also suggests that gaining marriage rights may threaten the gay community’s own history and identity. In particular, she claims that marriage threatens “to pull the sex out of homosexuality” and to drive a wedge between acceptable and unacceptable gay lifestyles.  Marriage, she fears, risks shifting “a badge of inferiority from decent same-sex couples – many of whom are portrayed in the media and in legal papers as wanting dignity for themselves and their children that only marriage can confer – to indecent others whose intimate attachments don’t or won’t march politely down the aisle.”  Justice Kennedy’s majority opinion in Obergefell — which contrasts the “dignity” and “integrity” of marriage with the “loneliness” of other family forms — certainly validates these concerns.

Even more provocatively, Franke suggests that the success of the marriage equality movement may have come at the expense of other stigmatized groups, particularly African Americans. She claims that homosexuality in general and the marriage equality movement in particular “enjoy a kind of racial privilege” that has contributed to its success.  “For better or for worse, in some circumstances winning marriage equality has been a zero sum game that has entailed shifting the stigma same-sex couples have endured to other already stigmatized groups, particularly poor African American women and their families.”  These claims are troubling and worth taking seriously. To some extent, they parallel the critique leveled by feminists of color who pointed out that efforts by privileged (white) women to achieve equality in the professional and corporate sphere often depended on the less visible and poorly compensated domestic work of poor women of color.

But access to marriage need not be a zero sum game, and Justice Kennedy does not speak for all supporters of marriage equality. Indeed, as Franke suggests in the Appendix that she captions  “A Progressive Call To Action for Married Queers,” there is much that both gay and straight supporters of marriage equality can do to ensure that marriage remains a right, rather than a duty, and that it augments, rather than displaces, other forms of intimate relationships.  Supporters can resist the repeal of domestic partner benefits programs; they can avoid arguments that disparage non-marital families and non-reproductive sexual activity; and they can link strategies to fight homophobia to other causes such as anti-racist organizing or defending reproductive rights.  Such efforts are made easier by constitutional and family law doctrines that limit the state’s ability to regulate intimate conduct and that protect a far broader range of family and relationship choices than was the case a century (or even a generation) ago. These developments suggest that opening marriage to same-sex couples may have positive, as well as negative externalities, and that both gay and straight progressives have the opportunity (and perhaps the obligation) to help bring about those positive externalities.  In this respect Wedlocked may be as much a call to action as it is a cautionary tale.

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Queering the Family in an Age of Marriage Equality

It was a pleasure to read Katherine Professor Franke’s provocative book, Wedlocked, and an even greater pleasure to be able to engage in this on-line discussion about Professor Professor Franke’s long simmering work. As a lesbian of African descent raising bi-racial children with a Latina co-parent, I came to this book with personal and professional relationships to many of the topics about which Professor Franke writes so eloquently. I left the experience of reading her book with numerous thoughts and questions to which I cannot do justice in a blog post. So, recognizing that I cannot do it all, I’ll use my space to reflect on one piece of Professor Franke’s narrative that resonated strongly with me, which is contemplating how families with children created by lgbt people do or do not radically, or even modestly in some cases, actually queer the idea of family. By this I mean, as I’ll explain in more detail below, just as is true in the context of marriage, being queer and creating a family does not always mean that you have queered the family. In that case, then, I wonder what it means to queer the family in our modern context and, perhaps more importantly, what we gain or lose by couching the narrative of change in the idea of queerness rather than using other language to describe and understand the end of the hegemony of the nuclear family.

My scholarly work exists at the intersection of family law, bioethics, and reproductive justice, with a particular focus on assisted reproduction and how non-coital forms of baby creation can, but don’t always, challenge traditional notions of family and belonging. Consequently, one piece of Professor Franke’s book that deeply resonated with me was her discussion of the ways in which same sex couples engage in a process of queering the family by virtue of how they create families with children. Professor Franke gives 3 such examples, one involving a very open open adoption of an infant by two African-American lesbians who, it appears, have been significantly integrated into the birth family of their child; one involving two white gay men who hired a gestational surrogate with whom they continue to have contact long after their child’s birth (In the interest of full disclosure, like Professor Franke, I am friends with the two men about whom she writes and am thrilled about the family that they were able to create); and another involving a male couple and a female couple who created biological children together and raised those children with the lesbians as primary parents and the men as loved family figures who are not social parents.

Professor Franke offers up these stories to illustrate how gay people, like African Americans (and, of course, these groups are not mutually exclusive), have played with, rejected, and, in some cases, transformed the traditional/nuclear family. She explains, “These three stories are typical of the ‘queerness’ of many families being formed by lesbians and gay men who want children in their lives.” I’m unsure what to make of the quotation marks that she uses around the word queerness, but it is the use of that word that is especially striking to me. I am happy to praise and celebrate the ways in which these families got created with care and deliberation. I also think, though, that it’s critical to recognize the ways in which they might not be all that queer depending on how that word is being deployed. If queer simply means not the nuclear family model of one man, one woman, and their biological children living in a single household, then a huge number of families are queer in this country, which starts to make them seem more mainstream even if not traditional. If we mean something more specific by using the term queer, perhaps requiring parents who identify as lgbt, then all of the families that Professor Franke describes surely qualify, but at that point the designation of queer sweeps in huge numbers of families that are almost identical to traditional family structures save for sex or gender identity. So, what makes two white gay men with financial privilege hiring a surrogate to carry a child for them and maintaining a relationship with that surrogate radically different from a white man and white woman (married or in a serious long-term relationship) making the same decisions? And when I think of the lesbians who are clearly committed to creating a family structure for their daughter that allows her to maintain close ties to her birth mother and her extended family of origin, I read that story not as a queer story per se, or certainly not only a queer story, but as an example of the kinds of extended networks of kin, caring, and community that have so long been a deep part of African American familial traditions extending to those families created by same-sex couples. The story, then, is best told as an intersectional one about how multiple identities shape the families that we create.

That I’ve opted to focus on what perhaps appears to be such a small part of Professor Franke’s broad and exciting narrative may seem out of place or out of touch, but I am fascinated by this question of how we understand what it means to dismantle dominant family structures and conquer familial hierarchies. I share Professor Franke’s concerns about how some of the legal strategies used in marriage equality litigation may actually have damaged those who create what I tend to describe in my work as outsider or marginalized families, rather than queer families. For me, the important dividing line in how families exist in our world is the distinction between families that can be formed by law and protected by law versus those that are treated as anomalous, or inferior, or even thought to be dangerous by some conservative politicians and policymakers. These outsider families are not necessarily radically upending notions of family and thus may not fall neatly into how some think about what it means to queer family. In fact, they may be much more closely aligned with traditional notions of family in many ways, but they are not granted legal legitimacy because they do not wholly track what has long been deemed the norm.

I am deeply mindful of the critical ways in which outsider families can create impacts beyond the circumstances of the individual family members such as in Moore v. City of East Cleveland in which the Supreme Court struck down a statute that excluded certain non-nuclear family units from living together in the City of East Cleveland (in that case, the offending family consisted of a grandmother, her son, and two grandsons) or consider how same sex couples are pushing some family courts and state legislatures to acknowledge more than a two parent dyad for any one child either through legislation or through case law. These are changes that matter and that make it harder to claim that there is one family structure that rules above all others. But, as we push the boundaries of family, as Professor Franke warns in the context of her history of marriage for freed slaves and for lgbt people in our present world, we should be careful what we wish for. We do not want to reinforce familial hierarchies by forcing people into specific family arrangements in order to warrant recognition (2 parents only), nor do we want to fetishize outsider families such that those who do not fit that model are denigrated for their choices (i.e., the adoptive parents who choose a closed adoption or the birth mother who opts for such an adoption thus perhaps not being queer enough in their choices). In thinking about the ways in which reproductive justice calls for us to respect the right to have a child, not have a child, or parent that child in a safe and healthy environment, the upshot for me is that the reproductive justice paradigm does not demand that outsider families conform to some particular form in order to help dismantle hierarchy. The end goal, or at least one end goal, is to recognize that most orthodoxy about how people choose to wrap themselves in the webs of dependence and intertwinement that family connotes are deeply personal (though not necessarily private) and the job of our laws and policies is to facilitate these personal choices without unjustifiable bias or prejudice. And as the demand for equitable law and policy continues, as Professor Franke makes clear, those demands for protection and acknowledgment can help to de-center marriage in family life, which is almost certainly a good thing for many people.

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Walter Scott and The Child Support System

In the blizzard of publicity surrounding the murder of Walter Scott, the unarmed African-American who was shot in the back as he ran from a routine traffic stop, the media has somewhat belatedly discovered the criminalization of child support enforcement. What it has yet to address fully is the way that criminalization imposes child support terms on poor, often minority, men that can be much harsher than those imposed through the system that typically applies to middle class families.

Earlier this week, The New York Times discussed the way state-initiated child support enforcement, as it prioritizes extracting payment from poor men who cannot afford it, is a disastrous trap. The article focused on the experiences of Walter Scott, shot in the back after he was pulled over by police for a broken taillight. Scott ran because he feared being sent to jail for falling behind in his child support payments.   His death occurred, according to one source in the story, as part of a punitive system that imprisons men “’over and over again for child support debt simply because they’re poor.’”

Those fighting the excessive incarceration – and murder – of African-American men have highlighted the pointless criminalization of child support enforcement. In South Carolina, a state where African-Americans constitute 28% of the population, 70% of those who end up in jail because of child support issues are black.   While a system that sends poor men to jail for debts they cannot pay is unconscionable, so too is the establishment of many child support awards in the first place: they are arbitrary, unfair and at odds with the treatment of elite fathers and, often, of the parents’ own arrangements.

Child support today reflects a system that results in the treatment of poor fathers dramatically differently from wealthy fathers. Read More

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UCLA Law Review Vol. 61, Issue 3

Volume 61, Issue 3 (February 2014)
Articles

How to Feel Like a Woman, or Why Punishment Is a Drag Mary Anne Franks 566
Free: Accounting for the Costs of the Internet’s Most Popular Price Chris Jay Hoofnagle & Jan Whittington 606
The Case for Tailoring Patent Awards Based on Time-to-Market Benjamin N. Roin 672

 

Comments

Here Comes the Sun: How Securities Regulations Cast a Shadow on the Growth of Community Solar in the United States Samantha Booth 760
Restoration Remedies for Remaining Residents David Kane 812

 

 

 

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Who’s Your Daddy?

Perhaps you, like me, sometimes find yourself wondering, “What ever happened to that delightful actor Jason Patric, star of the beloved 1987 film The Lost Boys?” I have a partial answer to that question. He is a biological father who is fighting to become a legal father to a child he shares with an ex-girlfriend. The story is more interesting than it might initially seem because of the way that Patric’s child was conceived.

The child in the middle of this custody dispute is named Gus and his mother, Danielle Schreiber, is Patric’s ex-girlfriend. According to published reports, Patric and Schreiber were not in a relationship when Gus was conceived or born. Patric donated his sperm to Schreiber, in the same way that thousands of men donate or sell sperm each year for infertility treatments for women to whom they have no connection. Schreiber conceived in a doctor’s office. If the two were a married couple and the pregnancy resulted from fertility treatment using the husband’s sperm, there would be no problem with Patric’s claim that he is both a genetic and legal father. But that was not the case here, and their accounts of their post-birth expectations are, unsurprisingly, very different.

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What It Means to Talk about Reproductive Justice

In my first post, I offered a truncated discussion of reproductive justice (RJ) in which I strongly asserted that RJ is not solely, or even primarily, about abortion. I then went on to write a blog post about abortion, so I forgive you if you think that I was being deceptive. Perhaps in that post I could have directed you to check out the schedule for a conference that I’ve been organizing at my law school called, Beyond Roe: Reproductive Justice in a Changing World, which will take place on October 11. That schedule, while certainly not ignoring abortion, also considers issues of faith and reproduction, choices in childbirth, assisted reproduction and women’s equality, access to contraception and more, which illustrates my point about how wide a shadow the RJ umbrella casts. In this post, to further illustrate my point, I am going to write about examples of reproductive regulation, some more overt than others, that fall squarely within the rubric of RJ and offer some ideas about how a justice lens helps illuminate critical issues and lead us toward resolution.

As I wrote previously, reproductive justice (RJ) is about the right to have children, to not have children, and to parent children in safe and healthy environments, which means that its reach is expansive. That expansive reach is absolutely necessary in the world of reproductive hierarchies in which we all reside. I use the term reproductive hierarchies to reflect the reality that individual decisions about reproduction are subject to varying levels of approbation or disapproval as expressed through public policy and law. While our system creates benefits for many of those who procreate and finds ways to encourage their procreation and support their parenting, for instance by giving tax breaks for child care and education costs, there are many others whose choices about whether and how to bear and beget are less accepted. For instance, an undocumented immigrant who gives birth to a child on American soil may get accused by many of giving birth to a so-called “anchor baby”— a pejorative term used to refer to certain children born in the United States to non-citizen parents. Young women who give birth while still in high school or college are subject to various penalties, including being asked to leave their schools or being forced to leave because of a lack of support for young parents. There are those who strongly believe that people who are LGBT should not procreate or parent and many state laws either do not protect LGBT people from discrimination in access to the tools of assisted reproduction or deny stability to families created by same sex couples. Even in the absence of pregnancy, women are subject to strictures that can be significantly limiting economically and professionally based on concerns about risks to a potential fetus. Breastfeeding mothers who work outside of the home have to contend with employers who provide inadequate or no time or unacceptable space in which to pump breast milk during the day, thus making it harder or impossible for women to effectuate a choice to breastfeed. Individuals living with intellectual disabilities, especially women, are at risk for non-consensual sterilizations sometimes without adequate procedures in place to protect their reproductive interests.

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Service with a (Surgically-Induced) Smile: Gender Norms at Work

I am so delighted to be guest blogging for Concurring Opinions this month and to be part of this exciting community.  This month, I will be blogging on various intersections of law, social norms, gender, sexuality, family, and work.  I have been researching some of these issues for my book project on Gender and Social Norms in Same-Sex and Different-Sex Marriage (contracted with NYU Press).  Although today’s topic is not part of this book research, it takes up many of the concerns that animate my work.

 

Recently, a plastic surgery procedure that has gained popularity among South Koreans has gained some major media attention in the U.S.  The procedure, technically called Valentine anguloplasty and sometimes colloquially called a “smile lipt,” is supposed to lift the outer corners of the lips into a smile, even when the putative smiler is not actually smiling.  According to a South Korean plastic surgery center promoting its smile procedure, people of Korean descent like myself have shorter mouths and lower mouth corners than “Westerners,” which means that I and others similarly situated supposedly have a greater tendency to look like we’re frowning.  “Perma-smile” to the rescue.

 

Considering the United States’ status as a world leader in the consumption of plastic surgery, one would think that Valentine anguloplasty would hold some appeal, even to the blessedly long-mouthed.  But based on the American media reaction, what’s been dubbed “joker lips surgery” is not likely to catch on any time soon.

 

Smile surgery has actually been around for decades and isn’t just a recent invention of South Korean plastic surgeons.  The response to this latest supposed craze, though, is what interests me more than the procedure itself.  No, not many of us want to look like this.  But while the origins of this photo are murky, the hypocrisy of the reaction to South Korean women wanting to look smiley is clear.

 

What strikes me is how narrow the chasm is between the perma-smile of Valentine anguloplasty and the social norms that compel those of us not in South Korea, particularly women, to smile – a lot.  Psychologists Marianne LaFrance, Elizabeth Paluck, and Marvin Hecht found that women smile more than men, particularly when women and men think that they are being observed.  This effect corresponds with numerous studies with which LaFrance, Paluck, and Hecht engage concerning social expectations for women to smile and penalties imposed on men for smiling too much. Others have written cleverly about the common form of street harassment consisting of ordering women to smile.

 

Women pay the price of not smiling (or of the much-memed “bitchy resting face”) on the street and in the workplace every day.  People like nice women.  And the smile is a proxy, although often a sloppy one, for that niceness.

 

For a woman to smile all the time, especially in the workplace, is — to borrow from Devon Carbado, Mitu Gulati, and Gowri Ramachandran — to perform “gender comfort,” easing the way for women’s presence.  What’s already a treacherous climb for women up to leadership positions in firms and corporations is made even more difficult by the added load of having to be smiley and perky all the while.  Sociologist Arlie Hochschild has identified the strains posed by such “emotional labor,” particularly for flight attendants expected to smile continuously to project concern, friendliness, and other emotions not necessarily felt all the time but considered necessary for the job.

 

We see the legal imperative and effect of the smiliness social norm historically and contemporaneously.  I recently watched the excellent PBS documentary Makers: Women Who Make America (2013), which reminded me of the 1950s expectation for those women living the post-war American Dream to be cheerful, smiley, and content.  Sixty years later, the norm persists.  Social expectations for women’s comportment often influence their willingness to negotiate, to ask for more, to complain.

 

In the context of the workplace, the Lilly Ledbetter Fair Pay Act, setting the statute of limitations for a pay discrimination case from each new paycheck affected by the discriminatory action, is an important step in remedying discrimination of which a plaintiff may be unaware.  But it also importantly accounts for the social dimension of that unawareness.  When one is socialized to be nice, it is difficult to suspect wrongdoing, even if it occurs over years.

 

Despite advances like this, social science accounts of workplace dynamics, particularly in the context of negotiation continue to give pause.  While women suffer opportunity- and pay-wise from failures to negotiate, they also suffer when they do negotiate.  Hannah Riley Bowles, Linda Babcock, and Lei Lai demonstrate in their research that women are judged more harshly than men for initiating negotiations for higher compensation, with perceptions of “niceness” and “demandingness” explaining resistance to female negotiators.  In recognition of the threat posed by women seeking higher pay, one approach is Sheryl Sandberg’s in Lean In, advising women negotiating pay to smile frequently.

 

This is all terribly depressing when I think of legal and social change.  We teach young women to be assertive, but they will likely be judged for being “agentic women.”  When we think about women in the workplace, perhaps then it makes sense that some would try to create through facial alteration what many “Westerners” are able to achieve more easily without going under the knife and paying $2000 – a permanent smile and all that comes with it.  🙂

 

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Injured Kids, Injured Parents and Tort Law

When a child suffers a long-term or permanent disability because of someone’s negligent or even intentional act, the child is not the only one whose life changes. The child’s special health care needs become part of the daily caregiving routines of the parents. Those needs might include, for example, taking the child to medical appointments, interacting with health care providers, delivering medical and other therapies, working with a school to develop an educational plan, advocating with social service agencies, etc. On average, a family caregiver for a special needs child spends nearly 30 hours a week caring for the child in ways that other parents don’t confront. Most of the caregiving parents are mothers, and most of them either leave work altogether or reduce their hours of work significantly. Other consequences that caregiving parents face include mental and physical health problems, social isolation, and the deterioration of family relationships.

Let’s say the child’s injuries result from a car accident or from medical malpractice. Does the law require the driver or the doctor to pay damages to the parents for the changes in their lives? Damages for direct costs, such as medical bills, are always allowed. When caregiving reduces the parent’s earning capacity, some states recognize claims for the parent’s lost wages. In others states, responsibility is limited to the cost of employing an unskilled medical aide. In the last group, the tortfeasor owes nothing to the parents.

I call the three approaches “20/20,” astigmatism, and blindness. “20/20” applies to situations where the child is viewed realistically, that is, as a person who, by reason of age and experience, is dependent on parents for direct care and for interacting with the outside world. Law and policy suffer from astigmatism when the child’s connection and dependency are acknowledged, but the consequences that parents face are blurred. (I’ve got astigmatism and can testify to the blurriness!) Blindness is what happens when, as one court argues, parents are responsible for their kids, no matter what – no sharing of costs is appropriate, regardless of the fact that the child would not need unusual caregiving but for the tortious injury.

In my current work, I’m trying to explain why many courts suffer from blindness or astigmatism. One reason is gender. Caregiving is considered women’s work, and women should do it with happiness and generosity, so their losses should not be monetized. If any loss is acknowledged, it should only be those losses that a man might also experience, that is, paying someone else to do the caregiving. Since, for reasons of both gender and race, we pay very little for caregiving jobs, it makes sense to compensate the caregiving parent (i.e., the mother) at the same small rate. Another reason is a lack of foreseeability – perhaps tortfeasors shouldn’t be expected to anticipate that injuring a child would affect a parent’s life, so it isn’t fair to make them pay damages for that harm. This perspective is consistent with a general lack of awareness about the lives of people with disabilities and the lives of their families. That degree of ignorance may have grown over the last half century in light of radical changes in social, legal, and cultural practices around health care generally and disabled kids in particular. Family caregivers now deliver much more medical care at home, for example, and the medical regimes of their special needs children are often more complex. Also, happily, more disabled children are living at home rather than in institutions, and many more are surviving into adulthood and beyond. At the same time, more mothers are now working outside the home. Many parents raising special needs children are doing it alone, so, if a mother has to meet the unusual demands of caring for a child with special needs, her chances of losing her job and falling into poverty increase. A third reason may be horizontal equity. The unusual caregiving demands of special needs children depend on the child’s characteristics, not on whether the source of the child’s special needs is a tort. Covering the lost wages of parents of tortiously-injured children puts those families at an economic advantage compared to families of other special needs children.

I look forward to hearing your thoughts on which of the three rules seems to make the most sense, and why.