Stereotyping & Law – Stereotyping Update January 2014
STEREOTYPING & LAW
Stereotyping Update – January 2014
Articles and chapters
Symposium edition of the Nevada Law Journal: Men, Masculinities, and Law: A Symposium on Multidimensional Masculinities Theory. Articles include:
Richard Collier, “Rethinking Men and Masculinities in the Contemporary Legal Profession: The Example of Fatherhood, Transnational Business Masculinities, and Work-Life Balance in Large Law Firms” (2013) 13(2) Nevada Law Journal 410
Martha Albertson Fineman, “Feminism, Masculinities, and Multiple Identities” (2013) 13(2) Nevada Law Journal 619
Ann C. McGinley and Frank Rudy Cooper, “Identities Cubed: Perspectives on Multidimensional Masculinities Theory” (2013) 13(2) Nevada Law Journal 326
Ann C. McGinley, “Introduction: Men, Masculinities, and Law” (2013) 13(2) Nevada Law Journal 315
Athena D. Mutua, “Multidimensionality is to Masculinities what Intersectionality is to Feminism“ (2013) 13(2) Nevada Law Journal 341
Farmers are farmers’ sons. Notable in our modern day, heralded by many as a gender-neutral society, it is farmers’ sons, not farmers’ daughters, who become farmers and take over ownership and management of the family farm. It has long been true that agricultural knowledge and land have passed through generations of men. In contrast, daughters, even today, are neither considered to be farmers nor likely to inherit family farmland. This Article begins by chronicling how farmland is inherited (by sons) then discusses why the pattern of excluding women continues. There have been substantial legal changes in the United States impacting land inheritance and ownership, culminating with the Equal Protection Clause’s extension to gender discrimination and the gender-neutral Uniform Probate Code. Social changes have also been tremendous, but even legal and social developments have been unable to correct gender disparity in farm inheritance. After exploring many legal and social factors, I conclude it is grooming – at the familial, governmental, and social levels – that plays the most vital role in training future farmers and mainly accounts for the gender difference in farm inheritance and the farming profession. This Article ultimately proposes girls must be groomed to farm in order to rectify the vast gender disparity in the ownership and management of family farms. A three pronged approach will be needed to remedy the situation, specifically: changing the role of lawyers, educating girls and women, and educating testators. What remains most important is that daughters are given the same opportunity as sons to farm based on merit, rather than being excluded from farm inheritance merely because of their gender.
Janine Benedet and Isabel Grant, “More Than an Empty Gesture: Enabling Women with Mental Disabilities to Testify on a Promise to Tell the Truth” (2013) 25 Canadian Journal of Women and Law 31
In this article, the authors use the recent Supreme Court of Canada decision in R. v DAI to examine the issue of competence to testify in sexual assault prosecutions for women with mental disabilities. The authors support the outcome reached by the majority of the Court but raise questions about some of the reasoning, including the equation of women with mental disabilities with children. The authors examine what types of questions are now appropriate in a competence inquiry and raise cautions with respect to the reliance on lay and expert witnesses to assist in the competency inquiry. It is argued that allowing women to testify who can communicate their evidence is a small step towards enabling the criminal justice system to respond to the high rate of sexual assault against women with mental disabilities.
With neither statutory proscriptions to uphold nor a clear statement of what they were trying to do, federal judges in the United States have deemed stereotyping actionable at law. The judges who built this cause of action moved fast, as “stereotype” in its modern sense is relatively new. What explains stereotyping as a legal wrong? Exploring the concept of a stereotype as presented by its coiner, the public intellectual Walter Lippmann, this Article argues that what’s wrong with stereotyping is unjustifiable constraint.
An answer to the question of what’s wrong delivers other answers as well. This Article shows how current American law and legal institutions exacerbate theproblem of stereotyping as well as lessen it. It says which stereotypes fall outside the ken of legal remediation. It distinguishes stereotyping from discrimination. It locates the constitutional law of stereotyping. In its last Part, using examples, it tells how law and legal institutions repair this wrong.
Luke A. Boso, “Male Sex Stereotyping” SSRN, 10 January 2014
Men are discriminated against every day in work and at school because they fail to look or behave like a “real” man. Most courts hold that sex discrimination includes treating a man differently because he fails to conform to sex stereotypes. But judges are reluctant to infer intent to discriminate “because of sex” in these cases, in large part because they have no meaningful guidelines for analyzing the evidence. Accordingly, judges routinely grant defendants’ motions for summary judgment and to dismiss based on little more than their own ideas about what masculinity means. This Article encourages judges to approach intent contextually when evaluating sex stereotyping evidence, taking into consideration factors such as place, race, and class. If a plaintiff’s gender presentation differs in any way from the relevant dominant gender norms, that difference alone should support an inference of discriminatory intent. A contextual intent approach recognizes that what it means to be gender conforming looks different depending on whom and where one is, and that sex stereotyping evidence is likewise amorphous. Attention to context will lead to more accurate determinations of whether a plaintiff’s gender differs from what is accepted and expected, and thus whether it is fair to infer that a plaintiff was harassed for those differences.
This Article challenges implicit societal assumptions that masculinity is a stable, monolithic concept. It suggests that multiple versions of masculinity coexist in every social space, some are more dominant than others, and dominant versions become the templates for appropriate male behavior. By exposing the pliable nature of masculinity, this Article deconstructs the meaning of manhood and seeks space for all men to perform gender more freely. Releasing men from rigid gender constraints, in turn, progresses society towards equality for things considered feminine, which can liberate both men and women.
Elaine Craig, “The Ethical Obligation of Defence Counsel in Sexual Assault Cases” (2014) 51(2) Osgoode Hall Law Journal (forthcoming)
The treatment of sexual assault complainants by defence counsel has been the site of significant debate for legal ethicists. Even those with the strongest commitment to the ethics of zealous advocacy struggle with how to approach the cross-examination of sexual assault complainants. One of the most contentious issues in this debate pertains to the use of bias, stereotype and discriminatory tactics to advance one’s client’s position.
This paper focuses on the professional responsibilities defence lawyers bear in sexual assault cases. Its central claim is as follows: Defence counsel are ethically obligated to restrict their carriage of a sexual assault case (including the evidence they seek to admit, the lines of examination and cross-examination they pursue and the closing arguments they submit) to conduct that supports finding of facts within the bounds of law. Put another way, defence counsel are ethically precluded from using strategies and advancing arguments that rely for their probative value on three social assumptions about sexual violence that have been legally rejected as baseless and irrelevant.
The paper is divided into three parts. Part I elucidates the three social assumptions or narratives about sexual violence that have been explicitly rejected through law reforms. Part II demonstrates the ways in which, despite changes to the law, defence counsel often continue to rely on these rejected social assumptions about sexual violence. Parts I and II establish the foundation for the claims advanced in Part III. Part III examines the relationship between these three legal reforms, the internal and external limitations on the constitutionally guaranteed right to full answer and defence, and the impact of schematic thinking on assessments of complainant credibility. An examination of the relationship between these three factors demonstrates that even legal ethicists strongly committed to the concept of zealous advocacy should accept that there is an ethical obligation not to invoke, rely upon, and consequently perpetuate these three legally rejected social assumptions about sexual violence.
Simone Cusack, “The CEDAW as a Legal Framework for Transnational Discourses on Gender Stereotyping,” in Anne Hellum & Henriette Sinding Aasen, eds., Women’s Human Rights: CEDAW in International, Regional and National Law (2013), 124
Book synopsis: As an instrument which addresses the circumstances which affect women’s lives and enjoyment of rights in a diverse world, the CEDAW is slowly but surely making its mark on the development of international and national law. Using national case studies from South Asia, Southern Africa, Australia, Canada and Northern Europe, Women’s Human Rights examines the potential and actual added value of the Convention on the Elimination of All Forms of Discrimination against Women in comparison and interaction with other equality and anti-discrimination mechanisms. The studies demonstrate how state and non-state actors have invoked, adopted or resisted the CEDAW and related instruments in different legal, political, economic and socio-cultural contexts, and how the various international, regional and national regimes have drawn inspiration and learned from each other.
Paul Quinn and Paul De Hert, “Self Respect — A ‘Rawlsian Primary Good’ Unprotected by the European Convention on Human Rights and its Lack of a Coherent Approach to Stigmatization?” International Journal of Discrimination and the Law 1 (published online 17 November 2013)
This article is primarily concerned with stigmatization resulting from public information campaigns such as public health information campaigns. Stigmatization as a concept has received much attention from social scientists but conversely little from the legal world, including the European Court of Human Rights. Stigmatization can be distinguished from other similar concepts, e.g. discrimination, stereotyping and marginalization, by its ability to induce a sense of ‘‘self-loathing.’’ The court’s limited discourse thus far raises questions as to whether it recognizes stigmatization as being capable of engaging human rights principles where no other engaging factors are present. Even if the court is willing to find engagement in such cases, it is likely that in most instances the court would find any incidental stigmatization justified given the potential benefits available. The lack of judicial engagement with such cases thus far may reflect the possibility that stigmatization occurring through expressive acts of public officials is located within a ‘‘nexus of non-justiciability’’ whereby the European Convention on Human Rights is generally not applicable.
Helen Reece, “Rape Myths: Is Elite Opinion Right and Popular Opinion Wrong?” (2013) Oxford Journal of Legal Studies 1
England and Wales have recently experienced wide-ranging rape law reform and a galloping rape reporting rate but no comparable increase in rape convictions, leading many erstwhile law reformers to turn attention to attitudes. In essence, their argument is that reform has proved relatively ineffective because a range of agents hold ‘rape myths’. Despite the broad consensus that this approach has attracted, I argue that the regressiveness of current public attitudes towards rape has been overstated. The claim that rape myths are widespread may be challenged on three grounds: first, some of the attitudes are not myths; secondly, not all the myths are about rape; thirdly, there is little evidence that the rape myths are widespread. To a troubling extent, we are in the process of creating myths about myths. This process functions to close down, not open up, the possibilities of a productive public conversation about important and at times vexed questions.
Aline Rivera, “L’impact de la tradition et des stéréotypes de genre sur les droits des femmes en Amérique latine: Une longue histoire de discrimination » in Les usages de la tradition dans le droit” Actes du Colloque tenu à l’Université Paris Ouest Nanterre La Défense, Nanterre, 6 décembre 2012, Paris, Presses Universitaires de Paris Ouest, (à apparaître).
Diane Roman, “Les stéréotypes de genre : ‘vielles lunes’ ou nouvelles perspectives pour le droit ?” in REGINE, Ce que le genre fait au droit”, Paris: Dalloz, 2013, 93
Amy J. Schmitz, “Sex Matters: Considering Gender in Consumer Contracting” (2013) 19 Cardozo Journal of Law & Gender 437
We hear about the so-called “War on Women” and persisting salary gaps between men and women in the popular media, but contracts scholars and policymakers rarely discuss gender. Instead, dominant voices in the contracts field often reflect classical and economics-driven theories built on assumptions of gender neutral and economically rational actors. Furthermore, many mistakenly assume that market competition and antidiscrimination legislation address any improper biases in contracting. This Article therefore aims to shed light on gender’s importance by distilling data from my own e-survey of Colorado consumers along with others’ research regarding gender differences in contract outcomes, interests and behaviors. In light of this research, the Article calls for open discussion of gender in contract and consumer law. It also suggests ideas for considering research findings and the importance of context in designing financial literacy and contract education programs that acknowledge gender while honoring individuality and avoiding stereotype reinforcement.
Alexandra Timmer, “From Inclusion to Transformation: Rewriting Konstantin Markin v. Russia” in Eva Brems (ed.), Diversity and European Human Rights: Rewriting Judgments of the ECHR (2012), 148-170
Book synopsis: Through redrafting the judgments of the ECHR, Diversity and European Human Rights demonstrates how the court could improve the mainstreaming of diversity in its judgments. Eighteen judgments are considered and rewritten to reflect the concerns of women, children, LGB persons, ethnic and religious minorities and persons with disabilities in turn. Each redrafted judgment is accompanied by a paper outlining the theoretical concepts and frameworks that guided the approaches of the authors and explaining how each amendment to the original text is an improvement. Simultaneously, the authors demonstrate how difficult it can be to translate ideas into judgments, whilst also providing examples of what those ideas would look like in judicial language. By rewriting actual judicial decisions in a wide range of topics this book offers a broad overview of diversity issues in the jurisprudence of the ECHR and aims to bridge the gap between academic analysis and judicial practice.
Michelle Weldon-Johns, “EU Work–Family Policies—Challenging Parental Roles or Reinforcing Gendered Stereotypes?” (2013) European Law Journal662
Shared parenting is premised on both working parents having the right to care. However, the work–family conflict at the EU level has traditionally focused on working mothers. This was reinforced in Hofmann v Barmer Ersatzkasse  1 CMLR 242 and Commission v Italy  3 CMLR 169, and in the enactment and application of the Parental Leave Directive 96/34/EC. In both instances, fathers’ role in childcare has been secondary, at best, to that of mothers. The question of shared parenting, and enabling all working parents to care, underpins proposals to amend the Pregnant Workers Directive 92/85/EEC and the revised Parental Leave Directive 2010/18/EU. This article examines the development of EU work–family policies with reference to Fineman’s notion of family care, and the right to care for all working parents. It considers whether a more defined role for fathers is beginning to emerge or maternal care is further entrenched.
Australian Human Rights Commission, Fact or Fiction? Stereotypes of Older Australians (2013)
The growth in the number of older Australians provides significant benefits and opportunities for Australia. To achieve these benefits we need to remove the barriers that prevent many older Australians from reaching their full potential in workplaces and the community. One of these barriers is discriminatory attitudes and behaviours, which often stem from negative stereotypes or misconceptions about older people. This research, Fact or fiction? Stereotypes of older Australians, comprises the first stage of the project Age positive: Promoting positive and diverse portrayals of older Australians, which has been funded by the Federal Government. It reveals the prevalence of negative stereotypes as well as the underrepresentation of older people in media and advertising. Significantly, the stereotypes and invisibility have influenced perceptions of the younger generations, created negative employer attitudes and impacted negatively the way older people view themselves. My hope, in publishing this research, is to promote greater awareness of the damaging effects of negative stereotypes on the lives of older people and on the cohesiveness of our society. Following increased awareness, I hope that decision makers will look to change the way they present older Australians, to reflect more realistically their value, capability and experience. The benefits for our economy, for corporate Australia and for older Australians themselves, are clear.