Book Review

A Critique of Jeannie Suk’s Portrayal of Criminal Protection Orders in At Home in the Law

Krista Anderson*

At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy.  By Jeannie Suk.  New Haven, CT.  Yale University Press (2009).  216 pages.

Click here to access a PDF version of the book review.

I. Introduction

In her book, At Home in the Law: How the Domestic Violence Revolution Is Transforming Privacy, Professor Jeannie Suk discusses the use of criminal protection orders as a weapon in the war against domestic violence.  Suk argues that criminal protective orders have been employed to deprive domestic violence victims of the autonomy to make their own choices in their intimate relationships.  At Home in the Law received the 2010 Herbert Jacob Book Prize for new, outstanding work in law and society scholarship.[1]  Despite its warm reception by legal academics,[2] Suk’s account gives short shrift to the value of criminal protection orders.  She makes assumptions and logical leaps that lead her to conclude criminal protection orders function to reduce rather than enhance the autonomy of domestic violence victims.  A closer look at the statutes, empirical evidence, and logical claims Suk cites reveals that her argument misses important realities experienced by domestic violence victims.  Suk raises valid concerns about the importance of structuring solutions to domestic violence with an eye on victim autonomy, but fails to support her thesis with empirical evidence.

This critique proceeds in three parts.  In Part I, I summarize Suk’s descriptive and normative discussion of criminal protection orders.  In Part II, I correct the factual errors in Suk’s account, including omissions and overstatements and explain how her narrative is weakened by the corrections.  In Part III, I take issue with two of her central normative criticisms of criminal protective orders.  First, I critique Suk’s argument that criminal protective orders create “proxy” crimes by criminalizing otherwise “innocent” conduct.  Second, I disagree with Suk that criminal protection orders generally function to reduce the autonomy of domestic violence victims.  I argue that criminal protection orders actually function to enhance the autonomy of domestic violence victims particularly in regards to their batterers. 

2. Summary of Suk’s Description and Criticism of the Use of Criminal Protection Orders

Suk purports to offer a merely descriptive account of how the war against domestic violence, through the deployment of criminal protection orders, has reduced the autonomy of domestic violence victims.[3]  Suk asserts that temporary and permanent criminal protection orders are often issued against the will of domestic violence victims, focusing her discussion on the practice of the Manhattan District Attorney’s Office (D.A.’s Office).[4]  Suk selects this particular D.A.’s office because advocates of the war on domestic violence view it as “at the forefront of efforts to combat domestic violence.”[5]

Suk catalogues the routine procedures for obtaining criminal protective orders at the D.A.’s Office.  The D.A.’s Office treats all crimes by one family or household member against another family or household member as domestic violence crimes.[6]  All domestic violence crimes are treated with a “mandatory domestic violence protocol.”[7]  This protocol requires mandatory arrest if there is probable cause to believe the suspect committed a domestic violence crime, even if the victim objects.[8]  The D.A.’s Office has a no-drop prosecution policy for all domestic violence arrests even when the victim is unwilling to cooperate with the prosecution.[9]  Because of victims’ frequent unwillingness to cooperate, over half of domestic violence prosecutions in the D.A.’s Office result in dismissal.[10]  At arraignment, prosecutors at the D.A.’s Office are required to seek a “no contact” temporary order of protection that not only prevents the defendant from visiting the victim or the victim’s children at home, school, or work, but also prevents all contact with the victim, including phone, email, voicemail, and third-party contact.[11]

Suk describes how temporary protections orders are usually granted, even when contested.[12]  Defense attorneys usually do not seek a hearing to contest the temporary protection orders.[13]  Where hearings are requested, they are usually cursory and do not allow for a careful consideration of the particular facts.[14]  The New York case People v. Forman established that while it is constitutional for the initial temporary order of protection to be granted without an opportunity for hearing, the defendant is entitled to a prompt adversarial evidentiary hearing after the issuance of the order.[15]  Suk notes that even when the defendant owns the home from which the temporary protection order excludes him, under Forman the court may grant the initial temporary protection order without a hearing.[16]  The Forman court balanced the “defendant’s private interest is his home” against “the public interest in the supervision of home space” and found the public interest in supervision outweighed the defendant’s private interest in his property. [17]

Once a temporary order of protection is granted, Suk asserts, the state closely monitors the defendant to ensure he is not violating the order.[18]  If the defendant visits or contacts the victim, even at the invitation of the victim, the defendant can be criminally prosecuted for violating the order.[19]  Suk claims that police officers make regular, unannounced visits to homes with a history of domestic violence, during which visits they arrest defendants in violation of protection orders.[20]  Even when there is insufficient evidence for conviction, she says the D.A.’s Office may attempt to keep the case active as long as possible to prolong the police’s ability “to monitor the defendant.”[21]

Suk’s discussion of the protocol of the D.A.’s Office—and of criminal protection orders generally—is far from merely descriptive in nature.  Rather, Suk’s book constructs a normative argument about how the use of criminal protection orders is alarming.  First, Suk takes issue with what she views as the practice of prosecuting protective order violations as a proxy for prosecuting domestic violence.[22]  In Suk’s view, protective orders criminalize “presence in the home,” conduct that is not criminal but-for the existence of the protective order.[23]  Because domestic violence is difficult to prove, and presence in the home is relatively easy to prove, Suk claims prosecutors prosecute protective order violations rather than the underlying scourge of domestic violence.[24]  Where a “no contact” order is in place, proof of a phone call can suffice to prove a violation of the order.[25]  Suk further claims that protective orders have the advantage of preventing the target crime through the prevention of the proxy crime.[26]  Suk seems alarmed that through the “legal conflation of presence in the home and criminal violence,” police presence is required in the home.[27]

Second, Suk argues that in the “normal course of DV prosecution,” the state’s use of criminal protective orders amounts to “state-imposed de facto divorce.”[28]  When a defendant is convicted of a domestic violence crime, the court may impose a final order of protection, which may last two to eight years.[29]  Alternatively, the prosecutor may obtain a final order of protection as a result of a plea bargain, in which a reduced sentence is traded for a final order of protection.[30]  As a result of a final order of protection, a married couple may be prohibited from emailing, calling, visiting, or writing one another.[31]  Thus, through a final order of protection, without the consent of either party, Suk argues that the state substantively ends the marriage between the parties.[32]  Suk asserts that neither incarceration nor divorce puts as final an end to an intimate relationship as a final order of protection does.[33]  Finally, Suk complains that de facto divorce goes into effect without the benefit of “traditional criminal process” or “proof of a crime.”[34]

Suk acknowledges that a protective order results in a reallocation of power within a domestic relationship, but downplays the value of this reallocation of power.[35]  As described above, once a domestic violence victim reports a violation of a protective order, the D.A. Office’s mandatory domestic violence protocol goes into effect.[36]  Once the protocol is initiated, a victim is powerless to reverse its course, so a single report can trigger “the full consequences of enforcement.”[37]  Suk argues a criminal protective order is not “a strategic tool that shifts power” to a domestic violence victim, but a weapon the state employs to effectively end an intimate relationship.[38]  
 

3. Concerns with Suk’s Description of Criminal Protection Orders

Before addressing Suk’s normative criticisms of criminal protection orders, I must address her descriptive errors, omissions, and overstatements.  Without an accurate picture of the facts, it is impossible to reach an accurate conclusion about the effects of criminal protection orders on victim autonomy. 

1. Suk Fails to Prove Police Routinely Monitor the Homes of Protective Order Recipients to Detect Violations of the Order

Suk claims that police officers make “routine unannounced visits to homes with a history of DV” and arrest defendants if they are present.[39]  The single source Suk directly cites for this proposition, the City of New York’s Domestic Violence Fact Sheet, states, “NYPD’s Domestic Violence Unit conducted 76,602 home visits in 2007, a 98% increase since 2002.”[40]  The factsheet does not reveal what a home visit is or under what circumstances a home visit by the NYPD occurs.[41]  Suk characterizes the purpose of the home visits as monitoring the homes of protective order recipients to determine if a batterer is present in violation of the order.[42]

There are two problems with Suk’s characterization of the home visits.  First, home visits are not conducted for the purpose of monitoring the home for the possible violation of a protective order.  New York City’s Domestic Violence Police Program (DVPP) pairs a police officer with a domestic violence counselor from Safe Horizon, a victims’ service agency, to visit domestic violence victims, once, several days after an episode of domestic violence is reported to the police.[43]  The counselor offers the victims assistance with safety planning and other social services.[44]  If the alleged batterer is present, the police officer will inform him that the “police will be monitoring the household.”[45]  In a randomized experiment, researchers demonstrated that recipients of DVPP’s follow-up visit experienced increased “confidence in the police” and were more likely to call the police if a future incident of violence occurred.[46]

 Suk describes the home visits as a monitoring or enforcement mechanism for protective orders,[47] but the timing of the visits contradicts this purpose.  The home visits are designed to occur only a few days after the incident, but hearings for temporary orders of protection are usually not held until about ten days after the incident,[48] and hearings on final orders of protection do not occur until much later.[49]  Furthermore, as a mathematical matter, Suk’s characterization of such visits as “routine” is an overstatement.  Police responded to over 229,354 domestic violence incidents in 2007 but only conducted 76,602 “home visits.”[50]  This is hardly the program of invasive police monitoring for protective order violations in victims’ homes that Suk describes.[51]

The second trouble with Suk’s characterization is both logical and constitutional.  Suk states the existence of a protective order not only permits but requires police presence in the home.[52]  Suk claims to be concerned only with police interference with victims’ autonomy.[53]  Presumably, then, Suk is not concerned with police monitoring at the request of victims who wish the police would enforce protective order violations to the fullest extent of the law, and is concerned only with police entering the home against the will of victims to monitor for protective order violations. 

Suk repeatedly asserts that once a victim obtains a protective order, the police will have an active presence monitoring the home for possible violations.[54]  What she fails to describe, however, is how exactly the police will be entering the home to monitor against the will of the victim.  A protective order, whether civil or criminal, does not abrogate the Fourth Amendment rights of the protected party.  The limited resources of police departments make it extremely unlikely that the police arrive uninvited at the home of a protective order recipient for the purpose of determining whether a batterer is present in violation of a protective order,[55] while the Fourth Amendment protection against unreasonable searches and seizures prevents the police from entering the home without the express consent from the victim or a search warrant obtained with probable cause.[56]  Thus, a victim who does not wish the police to enter her home can simply decline to allow them in.  Suk fails to provide any data to support the proposition that the police enter the homes of protected parties against their will unless exigent circumstances—such as a 911 call made by the victim or a neighbor—indicate an emergency.[57]

Suk’s critique of criminal protection orders hinges on the idea that the police can, and do, enforce criminal protection orders against the will of domestic violence victims.  If criminal protection orders are only enforced when domestic violence victims report a violation, then Suk’s argument unravels.  Suk’s thesis is that the war on domestic violence substantially reduces the autonomy of men and women vis-à-vis the state.[58]  Suk makes a compelling case that protective orders reduce the autonomy of suspected batterers, but absent her claim of unwanted police enforcement of protective order violations, Suk fails to explain how protective orders reduce the autonomy of domestic violence victims.

Theoretically, it is possible that a person with an order of protection against him could be persuaded by the state not to contact the protected party despite her insistence that she will not report violations of the protective order.  Yet Suk does not make this argument, and I suspect she avoids making it for the same reason she fails to cite any data that state-imposed de facto divorce exists in fact rather than merely in theory.  State-imposed de facto divorce exists, if at all, extremely rarely.  Suk has provided no data to contradict the conclusion that where a protected party opposes a criminal protection order, she will not report violations of the order, and the state simply does not have the bandwidth, inclination, or access to the homes of victims required to discover violations on its own.  In some jurisdictions, as a matter of policy, prosecutors do not seek protection orders when the victim objects that the order would be “pointless” because the state is powerless to prevent two willing people from contacting or visiting one another.[59]  Where a victim invites the defendant to violate the order, the specter of police monitoring does not suffice to dissuade the defendant from accepting the invitation.  Suk has offered no evidence to the contrary.  In sum, Suk’s theory of state-imposed de facto divorce is divorced from reality. 

2. Suk Mischaracterizes the Prevalence and Nature of “Permanent” Orders of Protection

Suk repeatedly portrays temporary criminal protection orders as automatically granted in domestic violence cases.  The reader is left with the understanding that in the majority of domestic violence cases the state obtains a permanent “no contact” protective order.  Both of these portrayals are factually inaccurate. 

Suk claims that state-imposed de facto divorce is “routine,”[60] yet the large majority of domestic violence prosecutions do not result in a final order of protection.  In 2002, for example, no more than 34.5% of domestic violence cases resulted in conviction by guilty plea or by trial.[61]  Even assuming the prosecutor sought and obtained a final order of protection in every one of these cases, at least 65.5% of domestic violence prosecutions did not result in a final order of protection,[62] but the actual number of final orders of protection is certainly less.  

While the issuance of final orders of protection is common at plea or sentencing, it is not automatic.  Final orders of protection, like temporary orders of protection, are unlikely to be granted where the standard of proof is not met.[63]  Where the defendant contests a temporary order of protection, the prosecution must prove “danger of intimidation or injury” to the victim in order to prevail.[64]  “Reasonable factual support” is necessary for the issuance of a temporary protective order.[65]  Even where the prosecution succeeds in obtaining a temporary order of protection over a victim’s objection and the case is not dismissed, the prosecution will not necessarily obtain a final order of protection.  First, not all prosecutors at the D.A.’s Office seek a full “no contact” order when the victim objects.[66]  Second, judges do not grant orders of protection in every case.  In New York City, when complainants request an order of protection be dropped or modified from full to limited, judges often consider the victim’s preference.[67]  As Gavin and Puffet note, “Judges vary in their policies on this subject, but most report that in making the decision they consider the nature and severity of the allegation, the defendant’s criminal history, the stage of the case, and extenuating factors such as children and finances.”[68]

Suk is emphatic that final criminal protection orders are even more powerful than incarceration at ending intimate relationships because, unlike incarceration, full “no contact” criminal protection orders prohibit visits, phone calls, letters, and emails.[69]  Trial courts do have the discretion to issue final orders of protection absent a victim’s consent,[70] but where the protected party objects to a final order of protection, some courts have held that telephone and mail contact should be allowed under the order.[71]  Where limited protection orders but not full “no contact” orders are granted despite the objection of the protected party, Suk’s objection loses its force.  A limited protection order permitting contact between the parties is clearly less invasive than incarceration.  Under a limited protection order, as opposed to incarceration, the parties are free to communicate with one another as often as they choose.  Furthermore, under both limited protection orders and “no contact” protection orders, if the protected party objects to the order she will not report violations to the police and the state is unlikely to discover the violations.  The state is particularly unlikely to discover unreported violations of the communication prohibitions in “no contact” orders.  Conversely, incarcerated persons have little privacy in their personal relationships.  Inmates’ phone calls are frequently taped and monitored for evidence that can be used against them in their criminal cases.[72]  Therefore, even where a protected party objects to a protection order, the protection order is much less burdensome on an intimate relationship than incarceration. 

Lastly, even if unintentionally, the terms “final” or “permanent” are deceptive.  In New York, the length of permanent criminal protective orders is capped by statute.  The statutory cap for felony offenses is eight years, five years for class A misdemeanors, and two years for all other offenses.[73]  Suk admits her critique of criminal protection orders was directed at misdemeanor domestic violence for which “serious physical injury” is not at issue.[74]  Thus, the state-imposed de facto divorce she is most concerned with would last two to five years under the statute.  Suk asserts that even when a final order of protection lasts only two years, the relationship will most likely dissolve.[75]  Either the parties will obey the order and cease any contact, or disobey, resulting in “repeated arrests and felony charges.”[76]  Suk’s assertion that disobeying a protection order at the invitation of the protected party will result in repeated arrests and felony charges is unsupported. 

3. Suk’s Critique of Criminal Protection Orders Fails to Appreciate  the Prevalence and Pattern of Domestic Abuse in Reality

Before addressing my concerns with Suk’s normative arguments, I must lay an additional factual foundation that is strikingly missing from Suk’s depiction of the consequences of domestic violence reform.  Suk’s account lacks all mention of the severity and nature of domestic violence.  Suk states her goal is to “give shape to the novelties of the law reform,” a contribution that will help us determine “if this regime is worth its costs.”[77]  Suk describes At Home in the Law as an “effort to focus the lens” so that we can see what is necessary to determine if we are happy with the direction of the law reform.[78]  Yet Suk’s effort is inadequate—a discussion of the merits of a solution is incomplete without an appreciation of the problem the solution seeks to remedy.  A criticism of modern airport security practices has little force if it merely catalogues practices that allegedly invade passenger privacy.  To determine whether an invasion of our privacy or autonomy is an acceptable component of a solution, we must understand the size and nature of the threat.  The force of Suk’s criticism is drained when viewed in light of the size and nature of the epidemic of domestic violence.  The costs she catalogues, while not insignificant, are acceptable in light of the overwhelming imperative of saving lives and reducing the incidence of domestic violence. 

1. Prevalence of Domestic Violence

Noticeably absent from Suk’s discussion of domestic violence reform is an appreciation of the extreme costs of domestic violence for society.  For the purpose of critiquing Suk’s narrative, a complete exposition of the costs is neither necessary nor possible, but a brief summary of the problem will illuminate the significance of the omission.  Each year, 1.5 million women are assaulted or raped by an intimate partner and more than 1,000 women are killed by an intimate partner.[79]  More women are killed each year by intimate partners than Americans were killed in one of the World Trade Center towers on September 11, 2001.[80]  Every year 500,000 women are victims of stalking.[81]  The leading cause of injury for women ages fifteen to fifty-four is domestic violence.[82]  Research indicates somewhere between 960,000 and 3 million women are physically abused by their husband or boyfriend each year.[83]  In 2004, almost 2.2 million people called a domestic violence hotline while seeking an escape from a domestic violence crisis.[84]  Society also bears a cost for intimate partner violence: “the health-related costs of intimate partner violence exceed $5.8 billion each year.”[85]  These statistics underscore the urgency of finding a solution to domestic violence, yet Suk’s critique of the war on domestic violence is divorced and detached from any discussion of the epidemic of domestic violence. 

2. Nature of Domestic Violence

Suk’s critique is rife with subtle attacks on the domestic violence protocols at the D.A.’s Office, but she fails to account for the fact that these very protocols were created in response to the distinctive nature of domestic violence.  There is a rich literature discussing the modus operandi of batterers and the commonalities between domestic violence victims.[86]  Unlike physical assaults outside of intimate relationships, “[b]y the time most cases of domestic abuse reach a prosecutor's desk, a history and pattern of abuse has been well established by the couple.”[87]  “Perpetrators in domestic violence cases control their victims through fear and intimidation. . . . [T]he fear of threats cause [sic] as much psychological trauma as physical abuse.”[88]  Suk’s concern with punishing criminal defendants for violations of protective orders rather than for physical assaults[89] belies her lack of understanding that the primary harm in domestic violence relationships is usually psychological rather than physical.  It is worth noting again that Suk limits her entire critique of criminal protection orders to misdemeanor assaults that do not involve “serious physical injury.”[90]  Because Suk’s narrative fails to account for the distinctive nature of domestic violence, Suk overemphasizes the importance of physical violence in inquiring whether state intervention is justified. 

3. Historical Under-Enforcement of Domestic Violence Crimes

Suk fails to account for the fact that strict domestic violence protocols were developed as a prophylactic measure in response to the widespread failure of law enforcement officers to take domestic violence crimes seriously.  As discussed at some length by both the majority and dissent in the Supreme Court’s Castle Rock v. Gonzales decision, the American criminal justice system has long failed to protect victims of domestic violence.[91]  Because domestic violence cases were historically considered noncriminal, the Court noted, “police assigned domestic violence calls low priority and often did not respond to them for several hours or ignored them altogether.”[92]  Even within the last fifteen years, a “deep reluctance to incarcerate domestic violence offenders” persists.[93]  Lack of sufficient police investigation and prosecutor unwillingness to press charges remain serious obstacles to justice for domestic violence victims in many American jurisdictions.[94]  At the outset of her critique on criminal protection orders, Suk assures the reader that her critique is aimed at misdemeanor domestic violence, where “serious physical injury” is not involved.[95]  Many misdemeanor domestic violence charges do, however, involve serious physical injury, yet prosecutors charge or plead down the cases to misdemeanors “despite facts suggesting the conduct constituted a felony.”[96]  Suk repeatedly cites concerns about ongoing police monitoring of protective order violations, but she cites no evidence that such monitoring occurs.  In fact, research suggests probation departments are notoriously unlikely to follow up on truancy at batterer intervention programs and fail to communicate with probation officers.[97]  Suk’s narrative portrays a vigorous enforcement regime where domestic violence cases are prosecuted to the fullest extent of the law.  This narrative sharply contrasts with a well-documented history of failure to prosecute domestic violence crimes.  For example, an American Lawyer study followed domestic violence arrests in eleven jurisdictions in 1995.  “Of the 140 arrests made in the eleven communities, 95 never made it to conviction, plea, or acquittal.”[98]  Even cases in “no-drop” jurisdictions mysteriously get dropped.[99]  Suk’s criticism of stringent domestic violence policies and protocols would benefit from a greater appreciation of their origin: a systematic unwillingness of police departments and district attorneys to take domestic violence crimes seriously. 

4. Suk’s Normative Arguments Against Protective Orders are Deficient

Though Suk’s narrative claims to be merely descriptive, Suk’s critique of criminal protective orders also contains normative deficiencies. 

1. Suk Dismisses Protective Order Violations as Proxy Crimes

Suk’s characterization of protective order violations as mere proxy crimes demonstrates her misunderstaning of domestic violence dynamics.  While Suk correctly points out that protective order violations are easier to prosecute than crimes of physical domestic violence,[100] she fails to appreciate how the presence of the batterer in the protected party’s home is a harm in and of itself.  Suk implies the presence of batterers in the home is somehow unfairly labeled “harmful or offensive” by the law.[101]  Suk claims the criminalization of presence in the home makes the unwarranted assumption that the batterer’s presence “makes the home a dangerous place for the family.”[102]  The criminalization of protective order violations is not merely instrumental to the underlying goal of punishing batterers for violence.  The purpose of protective orders is to create a safe space for victims to live without fear. 

When a batterer without invitation enters the home of his victim, especially in violation of a court order, the victim often has a reason to fear physical harm.  In New York, the violation of protective orders is a per se violation of a criminal statute against menacing.[103]  Menacing is the crime of placing a person in fear of “death, imminent serious physical injury or physical harm.”[104]  A protective order “is confirmation that the history of mistreatment exceeds acceptable or excusable levels, and has become so egregious that the . . . [protected party’s] own efforts cannot vindicate her autonomy.”[105]  By violating a protection order, a batterer is often evincing intent to isolate his victim from the lifeline connecting the victim to the court system that has promised to protect her.[106]  Especially in the case of temporary criminal protection orders, where the protected party will be subsequently called as a witness against her batterer, violations of protective orders often manifest intent to silence the protected party through fear and intimidation.[107]  Protective orders serve as a tool to guarantee a protected party a legal recourse when her batterer, through unwanted contact or visits, causes her to fear harm.  Prosecutions of violations of protection orders are prosecutions for robbing domestic violence victims of the peace of mind they need to live autonomously apart from their batterers. 

2. Suk Fails to Account for the Myriad Ways Criminal Protective Orders Enhance the Autonomy of Protected Persons

Suk claims criminal protective orders often substantially reduce the autonomy of protected parties.  Suk comes to this erroneous conclusion because she fails to adequately account for the following facts: (1) domestic violence reduces the autonomy of domestic violence victims vis-à-vis their batterers; (2) protection orders give protected parties the right, not the obligation, to seek enforcement of the order; and (3) if the protected party does not report a violation, it is unlikely anyone else will do so.[108]

In her narrative, Suk portrays domestic violence victims as twice victimized: physically harmed by a batterer and robbed of autonomy by the state.[109]  Suk misses a crucial point: domestic violence is not merely a physical crime; it is also a theft of autonomy.[110]  Much as prison guards control the actions of inmates through the threat of force, in a relationship with domestic violence, incidents of physical assault often serve to underscore the seriousness of the constant threat of physical violence.  Physical violence is the most legally actionable manifestation of a pattern of intimidation, control, and isolation by batterers that rob the victim of her liberty.[111]

Suk decries the state’s interference with victims’ intimate relationship choices, but Suk’s critique ignores the reason domestic violence victims so frequently refuse to cooperate with prosecutions against their batterers.  Domestic violence victims often refuse to cooperate with prosecutions because they are often susceptible to “intimidation or coercion” by batterers.[112]  The psychological effects of battering can be so pronounced that domestic violence victims often believe that because they deserve to be battered and that their batterers do not deserve to be punished.[113]  At the point the state intervenes to seek a criminal protection order for a domestic violence victim, the victim typically has already been subject to “systematic intimidation” at the hands of her batterer.[114]  Thus, the state is unable to accurately assess whether a victim objects to a protection order of her own free will or as a result of systematic intimidation and psychological abuse. 

By issuing a criminal protection order over the objection of a domestic violence victim, the state gives a domestic violence victim the choice to seek state enforcement of the order.  A criminal order of protection gives a domestic violence victim a tool for creating a safe zone in which she can regain her autonomy.  A criminal protection order can legally require the batterer to leave the home and allow the victim to stay in the home pending a further resolution of property disputes in probate or civil court.[115]  If she chooses, the victim may call the police to report every violation of the order.  Castle Rock v. Gonzales notwithstanding, many state statutes require police officers to arrest a suspect accused of violating a protective order.[116]  As previously established, the state does not monitor the homes of victims to detect unreported violations of protection orders.  With the exception of a loud or violent argument alerting the neighbors to call the police, it is unlikely the police would detect a protective order violation against the wishes of a protected party.  Thus, a criminal order of protection arms a domestic violence victim with a shield she may use at her discretion, and allows her to live in her home without being subject to violence, intimidation, or fear by her intimate partner. 

V. Conclusion

            My purpose in critiquing Suk’s portrayal of criminal protection orders is to bring her objections down to size.  As I sought to demonstrate, her concerns about state-imposed de facto divorce are grounded in theory rather than in reality.  Unwanted protective order violations are not mere proxy crimes, but assaults on the emotional well-being of protected parties.  Protection orders, whether criminal or civil, largely function to enhance the autonomy of protected parties by arming them with a tool they may use to enhance their safety. 

            That said, Suk’s concerns that the state is invading the privacy and autonomy of domestic violence victims are not without merit.  She is right that the autonomy of domestic violence victims is of paramount importance and that any affront to that autonomy must be carefully scrutinized.  No invasion of victim privacy or autonomy vis-à-vis the state should be tolerated if it is not substantially outweighed by an increase in victim autonomy vis-à-vis her batterer.  The intrusions the state has made on the autonomy of domestic violence victims should be scrutinized and critiqued.  To the extent these critiques prove that intrusions are in fact harmful to the autonomy of domestic violence victims, statutes, policies, and procedures should be rewritten to better effectuate victim autonomy in regards to both her batterer and to the state. 

            Yet Suk has failed to prove that criminal protection orders function to end intimate relationships against the will of protected parties.  Because the state does not typically enforce protective orders against the will of protected parties, criminal protective orders increase the power and autonomy of protected parties vis-à-vis their batterers.  This advantage comes at the price of minimal invasion into the privacy of protected parties.  The invasion of the home by the state that Suk decries in her book is vastly overstated.

Parenthood For Sale: Should the US Regulate Reproductive Technology?
Presented by HLS-ACLU
Tuesday, April 17, 12:00-1:15 PM
Wasserstein 2012

Moderator:
Katherine Kraschel '12

Panelists:
I. Glenn Cohen, Harvard Law School
George Annas, BU School of Public Health
Susan Crockin, Crock Law and Policy Group

Co-sponsored by WLA, Child & Youth Advocates and HLSRJ.

Come discuss the latest developments in reproductive technology, including IVF, surrogacy and sperm and egg donation, and hear experts in the fields of law, public health, and litigation discuss the legal and ethical implications of our ability to buy and sell fertility on the open market. All perspectives are welcome.

Thai food will be served!

In celebration of the Harvard Journal of Law and Gender's 35th birthday, we asked former JLG members to share some of their memories of the journal with us.  You can read these stories below.  We also compiled a list of frequently cited pieces from each of our past issues, which you can find here.  To learn more about JLG's history, click here.

Felice Batlan, former Executive Editor
Stacy Brustin, former Editor-in-Chief
Kirstin Dodge, former Editor-in-Chief
Karen Getman, former Editor-in-Chief
Aya Gruber, former Articles Editor
Erica Knievel, former Deputy Editor-in-Chief
Sheila Kuehl, founding co-Editor-in-Chief
Hannah S. Ross, former Editor-in-Chief
William Rubenstein, former Managing Editor
Naomi Schoenbaum, former co-Editor-in-Chief
Liz Thomas, founding co-Editor-in-Chief
Mary Whisner, former Editor-in-Chief and Managing Editor
Jennifer Wriggins, former Articles Editor and Executive Editor

On Friday, March 30, 2012, the Harvard Journal of Law and Gender will present a symposium at Harvard Law School.  "Transcending Barriers: Strategies for Change in Transgender Rights" will run from noon to 5:30 PM and feature four panels.  For more information on the schedule, click here.  Below, JLG will live blog the event.

Fri, March 30, 2012 - 5:42:07pm

Thanks everyone for coming! This was an excellent day. Just to clarify, unless a phrase is in quotes it is the blogger's own interpretation, thoughts, and reflections on the panelists. 

Fri, March 30, 2012 - 5:41:09pm

Other strategies for change:

Read "Name Calling" by Elizabeth Glazer.

Also, look to what other law schools are doing and form a coalition for change!

Fri, March 30, 2012 - 5:39:09pm

Why are trans people so threatening?

Some choose to opt out of gender, and then cannot be fit into the sexual discrimination framework. Also have to contend with the marriage movement. It is hard to get funding for economic and social justice within the trans movement.

Women's colleges: Providing a safe space for women. Do we need to change the conversation that takes place within women's colleges?

Smith College's Dean talking about the leadership opportunity for women. If the value of this education: Produce women leaders in the absence of patriarchy. What does that mean for embracing and inviting transgender people? Why wouldn't we want to admit transwomen and provide them with these same opportunities? 

How to make HLS a more welcoming place?

Collaborate with more students, reach out to groups and work together. Reach out to the alumni network – pushing them to work for change. Form alliances with other progressives and advocates.

 

Fri, March 30, 2012 - 5:22:53pm

I am: Transpeople Speak: Looking for people to make videos and tell stories about the real lives of transpeople.

Fri, March 30, 2012 - 5:20:11pm

Video of a parent of a 15 year old transgender youth. Transgender son came out to parents by writing a letter to his parents. Mother was surprised to learn that he was transgender and immeditate response: I love my kid and I want my kid to be happy, will do whatever it takes to support him. Secondary response: Full of fear for what this might mean for my child and his chances for happiness in life. Main fear – for him to be accepted and supported in the world. 

Fri, March 30, 2012 - 5:16:44pm

Being an ally to Transgender people:

Focus on "need to know" versus "want to know." Remember that every transgender person is different.

Fri, March 30, 2012 - 5:13:44pm

 

From R-to-L: Diane Rosenfeld, Stevie Tran, Elizabeth Glazer, Katherine Kraschel, Gunner Scott

Fri, March 30, 2012 - 5:11:54pm

Gunner Scott: Mass Transgender Political Coalition – have been around for 10 years – focus exclusively on trans issues. It took 5 years to pass a transgender rights bill. Also tell stories of discrimination in our community. Start a group of parents of trans children. These parents helped make policy changes because policy makers could identify with them.

Wants to note that being trans is a healthy way to be.

Statistics:

Transgender Youth K-12 settings rates of harassment (79%), physical assault (31%) and sexual assault (11%).

Harassment was so severe for transgender and gender non-conforming students caused them to leave school (11%).

In higher education, transgender students are denied access to gender-apporpriate housing (19%), lost campus housing (5%), lost or could not get financial aid or scholarship (11%).

[Statistics from 2009 National Transgender Discrimination Survey]

 

Fri, March 30, 2012 - 5:05:41pm

Once admitted, women's colleges would only be in violation of Title IX if they didn't spend the money to make accomodations. This is an untenable position. Title IX is a crutch to deflect a difficult institutional decision. 

 

Fri, March 30, 2012 - 5:03:55pm

Katherine Kraschel: Student note on Title IX and women's only colleges. Historically women's only colleges are refusing to admit transgender individuals. Title IX is the rationale behind this policy. Title IX is used perversely to allow for continued discrimination. Colleges argue that if they were to admit transgendered individuals they would have to provide reasonable accommodations, and these are expensive. 

Transgendered individuals face high levels of harassment while in school. Title IX should protect gender nonconforming and transgender individuals. Some district courts have found that Title IX protects victims of discrimination due to not conforming to gender stereotypes.

One argument has been raised that the affirmative action provision in Title IX allows single sex education to flourish. Katie argues that  women's institutions goals are not compromised by admitting transgendered students, while still excluding the privileged gender (straight cisgender men).

 

Fri, March 30, 2012 - 4:53:05pm

What about trans people that makes them so different? That should be the reason they experience discrimination? Then we can get a handle on how to fix it.

The types of people who get protected are people who have the ability to prove that they have a medical disorder. This is not about destabalizing gender. We are seeing a big disparity between the purpose of the trans movement (destabilization) and the outcomes of litigation (opposite of destabilization). Gender nonconformists are still wedded to gender – because accept that they are only two genders.

We are couching trans rights in a sex discrimination model. In order to win a sex discrimination claim you have to prove that if you were the other sex you wouldn't have been discriminated against. If you can't prove that, then you haven't proved that the reason for your discrimination is your sex.

The problem is that this doesn't do much for Marlo/Marla.

Fri, March 30, 2012 - 4:46:32pm

Professor Glazer: Missing narratives of people who exist in transitional spaces who may not identify in traditional ways. That middle space is exactly what we are supposed to be trying to protect in the transgender rights movement. It is really important to focus on that middle space. Thesis of the paper: We should get away from sex. Think about what the problem is: Why is it so bad that we don't have that middle space.

20 years ago famous symposium (1993): Debate between Mary Ann Case with Janet Halley and Pat Cain. Cain writes history of litigating for LGBT rights: How do we make the right argument to hold that sodomy bans are unconstitutional (pre-Lawrence). Cain – shift from a gay rights movement that was about liberation that has become about being like straight people (homo-kinship model).  

What about gay people that was so bad that caused them to be discriminated against? Sodomy is illegal, so if you're gay, you are presumed to have engaged in sodomy. Cain argues that we should ask gay people on the stand about their sexual histories, so it is not about what we presumed you did, but conduct you actually engaged in.

Halley: If we say that people are different on the basis of sodomy, then straight people who also engage in sodomy, will be grouped together with gay people.

Case: If you highlight sodomy, you will seperate out "good" gay people (those who don't engage in sodomy) from the "bad" gay people. This isn't very helpful.

Fri, March 30, 2012 - 4:38:18pm

Panel 4: Education and Schools

Moderator: Diane Rosenfeld

Panelists: Stevie Tran & Elizabeth Glazer (Hofstra School of Law); Katherine Kraschel (Harvard Law School); Gunner Scott (Mass Transgender Political Coalition)

Stevie Tran: Professor Glazer and Stevie tried to shed light on a story that is rarely heard. Came from a conversation based around my own transition. When Stevie tried to obtain hormones, was told was too ambivalent about it. Concerned with the medical approach necessary to obtain hormones – knowing what will happen 5 years down the line. 

Read the book "The Transgendered Child" which told the story of Marlo. Marlo always preferred feminine forms of expression. He was allowed more feminine forms of clothing and others were starting to perceive him as a girl. Throughout this whole process, he never felt liek a girl. He had a strong male identity but he like to express as a girl. He would correct people when they thought he was a girl, but when faced with recoil and negative reaction he stopped correcting them. At age 7 he started to present as a more stereotypical boy with short hair. He became depressed and suicidal. Marlo became Marla and now says that he always felt like a girl.

Why did Marlo/a have to choose? Why did she have to choose in the first grade to be a particular gender? Where is the transitional space for people who just want to be who they are?

 

Fri, March 30, 2012 - 4:16:59pm

Earlier this year, USCIS issued guidance for adjudicating LGBTI asylum claims. This is significant because it demonstrates that LGBTI are as serious as other asylum cases. There is some guidance that are transgender specific (language to use and examples of one year exceptions – if someone has recently began to transition).

 

Fri, March 30, 2012 - 4:14:51pm

Will a transgendered person go to a men's or a women's prison?

Sadly placements are placed based on birth sex or what an officer determines is their birth sex. Often that person will be placed based on a genital search. Then when a person doesn't feel safe, they are placed in 23 hour lockdown. Trans women are placed in general population in male prisons. Victoria has never seen a transwoman placed in general population in a female prison.

There is no one sized fits all solution, which makes it difficult to do "global advocacy work." Some people feel more comfortable in general population, some feel more comfortable in segregation.

Fri, March 30, 2012 - 4:06:19pm

Question: Should we focus on individual advocacy or on systemic change?

Bottom line: We need both. Must use multiple strategies to break down this system. 

Fri, March 30, 2012 - 4:03:44pm

Victoria: There is no way to house transgendered people safely in a detention setting. They should be released, for example with ankle monitoring bracelets. It is so much harder for trans people to win their cases once detained. Once detained, with no counsel, but very hard to proove an asylum case.

Good news and bad news: Most of the cases we bring on behalf of transgendered people we do win. However, this is because they are facing persecution in their country and it is generally not hard to proove the horrific human rights abuses that face trans people around the world.

Fri, March 30, 2012 - 3:57:08pm

Victoria Neilson: Post 9/11 – enormous rise of policing – police and immigration working hand in hand to detain people. THere have been more deportations under the Obama administration than under the Bush administration. Day to day problems in immigration detention: About 15-20% of her asylum practice is for transgendered clients. Yet 75% of detained clients are transgendered because trans people are much more likely to come in contact with the criminal justice system.

The theory of immigration detention is not punitive. The reality however, is that detention centers are run like jails, often as for-profit-prisons. Big problems include access to medical care while in immigration detention. Now, new guidelines that say that if someone was receiving hormones before they were detained, they should continue to get hormones. Even with these moderate standards that are largely unenforceable, there has been backlash (Republican hearings using rhetoric that compares detention to a holiday).

 

Fri, March 30, 2012 - 3:52:14pm

VIctoria Neilson: Film about a transwoman immigrant from Mexico, who faced violence in her childhood home and left Mexico for the United States partly to escape the violence. She has been incarcerated and placed in a center for men. She was then transferred to Louisiana, where she was locked up in solitary confinement for 23 hours a day. She doesn't speak English and therefore couldn't access any kind of legal support or justice through the courts. She was deported to Mexico in 2006.

Fri, March 30, 2012 - 3:46:46pm

Post 9/11 laws pit deserving immigrants against non-deserving immigrants puts the most vulnerable immigrants at risk: Transgender, poor immigrants of color.

Fri, March 30, 2012 - 3:44:39pm

Pooja Gehi: Post 9/11 legislation have affected the poor trans community. Any time a trans person interacts with the criminal justice system, increased likelihood of deportation. This has created a profiling to deportation cycle. One way to break this cycle is to pay bail at an arraignment hearing. However, even 0 bail may be too high for low income trans people of color.

 

Fri, March 30, 2012 - 3:41:01pm

Fri, March 30, 2012 - 3:38:10pm

Immigration Panel

Moderator: Sabrineh Ardalan

Speakers: Pooja Gehi (Sylvia Rivera Law Project [SRLP]) & Victoria Neilson (New York University Law School)

Pooja Gehi: SRLP – Free legal services to transgendered, gender non-conforming, intersex, intersecting with poverty, low income and especially to people of color. Having a membership base made up of the clients, and operating as a collective: Very important. Making strategic choices around whether to focus on immigration equality, educational advocacy work, etc.

3 areas of focus that intersect: 

1. immigrant access program

2. Prison justice program

3. Access to healthcare

Gender identity policed in the community. This has lead to the term coined by clients: "Walking while trans." For example, transwoman holding a purse stopped and searched, upheld as a legitimate search based on "suspicious activity." 

Fri, March 30, 2012 - 3:16:50pm

Dreger responds to a great comment about gender policing and social norm reinforcement in non-trans contexts (such as labiaplasty) and connections to trans medicalization and says that should be the responsibility of feminists, not the trans community, which is already a community with a lot of burdens. 

Fri, March 30, 2012 - 3:12:01pm

Crincoli says that answer to the recreation sports question is no sex-segregation in sports at all. Bona fide gender identity should be the governing ethic across the board. He would say only the very, very elite (Olympic, for example) levels would have gender policing – everywhere else (including NCAA sports) would not. At the youth level we force segregation often for Title IX implications – instead we should ramp up all participation. 

Fri, March 30, 2012 - 3:06:40pm

Dreger says physicians are finally looking at outcomes, which really matters. "Safety is one of the things finally being measured – which is the biggest issue for people who aren't privileged." Passability is all about safety for some populations.

Fri, March 30, 2012 - 3:05:50pm

Crincoli also points out that treatments being "available" is not necessarily universal because we lack universal care. Dreger says she uses the term "medical refugees" (not tourists) for individuals who go outside the United States to get care. Dreger says she does worry about whether changing availability will increase coercion. Palazzolo says one 7th Circuit case by Posner (who Crincoli clerked for) discussing the cost of treatment. 

Fri, March 30, 2012 - 3:02:16pm

Gunner Scott in the audience argues that we should push for no genital surgery requirements for SSA and other issues. Liz Glazer in the audience points out that there is an equality question and a liberty question embedded. "Sometimes we essentialize who gets in the club." Professor Cohen takes Palazzo's case where they're trying to say surgery shouldn't be recreated. What if someone feels trans but doesn't want hormone therapy, surgery, or even wants to have gender discordant dress? 

Fri, March 30, 2012 - 2:57:11pm

Moderator Professor Cohen asks about interventions and developments thought of progressive becoming coercive – where if you don't do them you won't get access to something. Examples include marriage and insurance, cochlear implants for the death, and surgery for trans-identifying individuals. 

Fri, March 30, 2012 - 2:54:39pm

Palazzolo says a lot of it is about connecting with individuals in the field and having them know your name. Engage with events like this in your area. 

Fri, March 30, 2012 - 2:53:46pm

Dreger: it's an overblown fear that drives the medical establishment in multiple contexts. "it's a combination of beneficence and homophobia." Some providers have an attitude that no sane person would transition medically. Dreger points out that medicine could look at levels of regret with heart surgery – the regret might be higher. This could inform how we think about regret in other contexts. 

Fri, March 30, 2012 - 2:51:58pm

Questions from the audience. Journal member Evelyn asks about the connection between narratives of medical regret in the trans community and narrative of regret related to abortion. Symposium co-chair Joanne asks Kyle how you can get access to these great cases while working at firm. 

Fri, March 30, 2012 - 2:50:43pm

A picture of the crowd here in Austin North, enjoying the event. 

Fri, March 30, 2012 - 2:49:53pm

Fri, March 30, 2012 - 2:48:04pm

Palazzolo discusses some of the cases he's worked on. One in Illinois involves a custody dispute where a trans parent who hadn't had gender surgery. The court decided that without surgery, the marriage was actually a same-sex marriage, and thus the custody dispute was null. Palazzolo and Jenner & Block brought a suit with the ACLU. A new law in the state instead of just requiring genital surgery specified which surgeries. They got new birth certificates for all the plaintiffs, and a state court judge let the case proceed as a class action.  

Fri, March 30, 2012 - 2:44:51pm

A picture of our second panel for those who couldn't make it today. 

Fri, March 30, 2012 - 2:43:56pm

Fri, March 30, 2012 - 2:43:12pm

Last we have Kyle Palazzolo of Jenner & Block, one of our sponsors today. Kyle says that even from a firm you can still engage with LGBT communities. 

Fri, March 30, 2012 - 2:42:34pm

When we tell an essentialist story of who is what we limit approaches and options. 

Fri, March 30, 2012 - 2:41:27pm

Dreger reiterates her discomfort with immutable characteristics. In the history of medicine the narrative requirement has been really strict and impacts access to care. Dreger says Crincoli's discussion of recreational sports is important. In Canada, gender segregation in childhood sports is not present – "there are other models". 

Fri, March 30, 2012 - 2:38:59pm

The real focus should be: is the patient well? When people are allowed to choose interventions for themselves, they are. Dreger says that the trans population is studied in terms of regret and held to an incredibly high standard of non-regret regarding surgery and hormone intervention. 

Fri, March 30, 2012 - 2:36:34pm

Another approach is called the accommodation approach, where you identify a transgender child early and intervene early (pre-puberty) with hormones. Dreger says this looks progressive but is actually rather conservative – it might take kids who are queer and send them down a channel to "smash them into the male-female system."

Fri, March 30, 2012 - 2:33:36pm

Dreger specializes in treatment of children. She is very concerned with the treatment of children who are sex atypical and gender atypical. "It's a history of coercion, frankly – of requiring those children and adults to adhere to those concepts of what it means to be a man or woman."

Fri, March 30, 2012 - 2:32:15pm

Some biological distinctions are widely accepted (such as age or human/non-human). However, "adherence to anatomy is getting old-fashioned" and maybe we're approaching a new question: "What does democracy look like after anatomy?"

Fri, March 30, 2012 - 2:29:40pm

Dreger discusses the founding era in America and analogies to anatomy – there were appeals to an anatomical commonality ("all men are created equal") and 20th-century civil rights movements pushed a similar approach. 

Fri, March 30, 2012 - 2:27:43pm

Alice Dreger, Professor of Clinical Ethics at Northwestern University's school of medicine. She's a historian of anatomy and works in history of science. 

Fri, March 30, 2012 - 2:26:01pm

What can we do? What role do attorneys and advocates have? Understand that other actors don't speak the language we do – we should reach out to make sure there's communication between law and medicine to make sure we're pushing for inclusion. It's common for us to punt to medical experts, and for them to punt to us on legal questions – it's important we educate ourselves to speak with others. 

Fri, March 30, 2012 - 2:24:03pm

Being an athlete is part of your identity – having access to sport is an important part of a person's life. In marriage, there's a relational aspect to identity. Sport and marriage/relationships can be viewed as health care – access makes people better off. 

Fri, March 30, 2012 - 2:21:24pm

Discussing the impact of medical providers. In elite performance sport we see competition-oriented treatment. In recreational sport, however, you have varied access to care or treatment, and it is usually uninvolved with athletic participation. The medical community has a gatekeeper role for the trans community, and often they view family support as key to opening that gate. 

Fri, March 30, 2012 - 2:19:16pm

Crincoli analogizes to family law and marriage – you see a similarly non-standardized system, reactive approach (waiting for a problem to happen), no clear choice of language and terminology (the opposite of the 'boiler plate' problem we see in recreational sports), and implementation by a decentralized system. 

Fri, March 30, 2012 - 2:17:42pm

Crincoli says we see a lot of "cut and paste" where the first actor creating language and terminology in a policy gets copied. Those first actors are often "experts" discussing the high-level elite. Then, in terms of implementation, you have a diffuse array of actors implementing the policies (such as volunteer coaches).  

Fri, March 30, 2012 - 2:16:09pm

Crincoli will focus on the impact of documentation on recreational sports (versus elite performance sports, which gets more of the media attention). How do policies get set in sports. There's no "lex sportiva" governing sports – no one system. At the same time there's a reactive vs. prospective approach to this – often we wait until someone is excluded to react. 

Fri, March 30, 2012 - 2:13:46pm

Shawn Crincoli, Professor at Touro College Fuchsberg Law Center, is up first to discuss law and medicine. He begins with looking at passports and gender reassignment on official government documents. There is a variety of treatment in this area, and language doesn't specify what should happen. Language used by lawyers and physicians and "It's the luck of the draw" regarding who you get to see. Of course, this favors sophisticated clients. 

Fri, March 30, 2012 - 2:11:38pm

Thanks for live blogging the first panel Amy (incoming co-EIC for Volume 36) – this is Kristi back again to blog our second panel, "Marriage and Health," moderated by our own faculty advisor Professor I. Glenn Cohen.

Fri, March 30, 2012 - 2:02:30pm

Q: raises concerns essentialist approach and narrative of sex or sexual orientation as an immutable characteristic. Ex: changing sex on birth certification — changing it might indiciate that there is something "wrong" with someone. 

A: Jennifer Levi: courts already be moving away from requiring immutable characteristics; can still be deep and central to identity without being immutable. Activists face difficult question: "who to help first, how to help most marginalized members of community?" 

Fri, March 30, 2012 - 1:57:42pm

Q: raises example of trans man not being allowed to answer phones on DV hotline. "It all goes back to the bathroom." Losing the voices of survivors of violence; keeping these voices out of community. But is restorative justice feasible; does it really hold people accountable?

Quince Hopkins: restorative justice may protect victims better than court process and enable them to speak; may ensure that DV is not a secret. Feels "hopeful, but with some caution" toward move toward RJ.

Fri, March 30, 2012 - 1:54:25pm

Answer from Quince Hopkins: few people would take on social stigma of being transgendered by merely pretending to be so.

Fri, March 30, 2012 - 1:52:12pm

Question from audience: how to respond to claim that "gender identity" category will be abused, ie: by the non-trans guy who wants to hang out in women's bathrooms?

Jennifer Levi: court's don't step into complex question of what someone's claimed religious beliefs and obligations are. In education and employment settings, it's not so difficult to assess the legitimacy of one's asserted identity — people have day-to-day contact with the person making such claim. And most employers want to avoid litigation.  

Fri, March 30, 2012 - 1:46:38pm

Constitutional law so far silent on what freedom of expression means within the context of gender expression — but possibilities in this realm. We are just beginning a legal revolution.

Fri, March 30, 2012 - 1:45:47pm

When we ask "should transgender people be included in antidiscrimination laws," what broader issues are we overlooking?  

Ex: health care. Client "Beth" (pseudnym). Even though state has robust antidiscrimination law, Beth covered by ERISA and insurance that doesn't pay for sex reassignment.  Developed breasts and needed mammogram; insurance refused to cover cost because claim related to change of sex and she was in insurer's system as "male." What if her mammogram had been positive: could insurance company claim that cancer was related to change in sex?

Fri, March 30, 2012 - 1:42:00pm

Ultimate question: "Is El'Jai "male enough" for this job?

Fri, March 30, 2012 - 1:41:15pm

El'Jai's case: filed suit under NJ antidiscrim. law. Employer claimed BFOQ defense. TLDEF didn't dispute this claim.

If El'Jai can be terminated based on BFOQ defense, what does the NJ law accomplish? Is an entire class of jobs going to be unavailable to any trans person, and to an individual with few job opportunities in general?

Fri, March 30, 2012 - 1:38:27pm

Michael Silverman (Trans Legal Defense & Educ. Fund): Starts off with a quote: "Nothing in life is true but the rent." 

Wants to focus on a few cases to get to practical effects on law and legal chance on individiudal:

El'Jai Devoreau: current client. Is African-American, poor, transexual. Lives in NJ, which includes gender identity/expression in antidiscrimination law. Applied for work at drug treatment center, which included watching men urinate into specimen jar. After he showed up for training, managers learned of his trans status; fired him for not meeting qualifications of job. 

Case raises question: how much good can these anti-discrimination laws do? What happens once the words are on paper, and when an agency is left to interpret the language?

Fri, March 30, 2012 - 1:33:22pm

Community conferencing: all the "stakeholders" in the community broad in to address the problems. Empowering for victims, gives voice and control, reaches offender in more meaningful way than criminal penalties. More broadly: builds community bonds. 

Fri, March 30, 2012 - 1:31:24pm

Restorative justice as an answer? Collectively identifiying and responding to harms. Within tight-knit communities (ex: indigeonous and first nations), restorative justice has worked well — might extend to trans community. 

Fri, March 30, 2012 - 1:29:43pm

3. Violence against transgender people: relationship and acquaintance violence, including members of LGBTQI community committing violence against each other. Most violence against trans people is relationship violence, and often is violence of sexual character. Massive underreporting, among many other law enforcement problems. Fear of law enforcement and widespread discrimination within law enforcement. 

Fri, March 30, 2012 - 1:27:26pm

2. "Unreadable bodies confuse the 'orthodox.'" Confusion caused by unreadable bodies leads to exclusion: MI women's music festival. Ex: Same-sex sports. Jennifer Miller: excluded from lesbian bars because she has a beard. ENDA and question of whether to include transgender as protected category. 

Fri, March 30, 2012 - 1:24:25pm

1. Laqueur: gender pre-defines sex.  Anatomical studies show that in 1500s and 1600s, there was conception of "one" human body, not a male/female binary. One body has variations along a "heat axis." Female bodies seen as upside-down or inside-out male bodies (vaginal canal = inverted penis). [Shows early anatomic drawings.] Where people fall along heat axis is socially and politically determined: those who have power aligned with male sex. 

Fri, March 30, 2012 - 1:20:17pm

C. Quince Hopkins (Florida Coastal School of Law):  Focusing on "hidden violence." Data shows most of the violence against LGBTQ persons occurs within their own homes/families. 

Theorizing from T. Laqueur and J. Butler.

Fri, March 30, 2012 - 1:18:27pm

Addresses problems in law and legal frameworks:

Highlights problems with statutory language. For example, definition of sexual orientation in MA: homosexuality, heterosexuality, and bisexuality, but excludes sexual attraction to children. (Message of this?)

IMportance of public statements: Cynthia Nixon ("I choose to be a lesbian") — does law need to recognize sexuality as an "immutable characteristic; Chas Bono's desire to have "genital surgery."  Jennifer: We can't pay too much attention to this — we are not a monolithic community, but need to form a strong community across the identities that we share (and those we don't share).

"Can't let legal frameworks determine of definitions of who we are."

Fri, March 30, 2012 - 1:11:25pm

Passage of anti-discrimination law doesn't eradicate discrimination, but does signal growth of a movement and creation of a community — making it possible to say "I am a transgendered person."

Fri, March 30, 2012 - 1:10:45pm

MA law defines "gender identity" as "a person's gender-related identity, appearance, or behavior, whether or not [it] is  different from that traditionally associated with the person's psyiology or assigned sex at birth." 

Fri, March 30, 2012 - 1:09:06pm

Jennifer Levi (GLAD):  Reponding to a selection from Prof. Spade's book: "we must stop understanding that what the law says is true." She would combine Spade's broader advocacy efforts with working within the law – are not in diametric opposition – can actually work together.  Can work to ensure inclusion within nondiscrimination laws while also questioning the language they use to define people and phenomena.  Notes that federal gov't (country's largest employer), and 16 states plus DC defines "sex," "gender," and "gender identity/expression" — evidence of progress. But these definitions are problematic. 

Fri, March 30, 2012 - 1:02:51pm

Next panel: "Evolution of Laws" with C. Quince Hopkins, Jennifer Levi, Michael Silverman, Libby Adler.

Fri, March 30, 2012 - 12:59:11pm

Second question concerns prison reform. Prison abolitionists, Spade says, look to only system-wide reforms, and do the rest as individual advocacy to get trans people and all people out of prison. Spade recommends Angela Davis's "Are Prisons Obsolete?" – you can find it here: http://www.amazon.com/Are-Prisons-Obsolete-Angela-Davis/dp/1583225811

Fri, March 30, 2012 - 12:51:32pm

We need to also re-think the time frame of social justice projects – it's not an eighteen-month (ie funding cycle) change we're looking for. The funding structure also forces everyone to say any effort is a win, not letting us really think about severe losses and learn from them. 

Fri, March 30, 2012 - 12:49:10pm

Now we move to Q&A. First question: wondering about funding for the public sector and visions for change there. Spade recommends the book "The Revolution will not be Funded" (you can find more about it here http://www.southendpress.org/2006/items/87662) which critiques funding streams and how they shape and shift what organizations can do. It makes the focus on what's fund-able. 

Fri, March 30, 2012 - 12:47:13pm

Broader social justice politics, not equality politics is the goal. "Law reform is not the goal – we're not going to meet our needs by passing a law." 

Fri, March 30, 2012 - 12:46:19pm

Spade isn't arguing against law reform or legal efforts – these efforts involve legislative tactics. The question is whether we can shift the efforts against "equality law" (window dressing). 

Fri, March 30, 2012 - 12:45:31pm

Change must come from masses of people coordinating with each other. Work should be focused on building horizontal, community-driven (not funder-driven) communities, not with getting the right op-ed in the The New York Times. We should look for ways that communities are driven into harmful systems. Efforts include advocacy against building new prisons. "We also need to build the systems we want – building alternatives." How can we be safe? How do we meet each other's needs? We should look at community responses to violence which are not tied to police and prison. 

Fri, March 30, 2012 - 12:42:34pm

When we think about legal reform, "we need to ask: who are we leaving out? Will this provide actual relief or is it just window dressing to make the state look better? Will it build or expand harmful systems?" 

Fri, March 30, 2012 - 12:41:35pm

Spade raises interesting questions for the legal services model. Now, in the mainstream legal services model, we have extremely privileged people decide which poor people should get legal support. It's very individualized. 

Fri, March 30, 2012 - 12:39:38pm

What does it look like on the ground? Vulnerable people should be first – start with people in immigration facilities, who are homeless, who are in the criminal punishment system experience rape and violence. "It's actually the reverse of what the gay and lesbian rights groups have done, which is demand access for those closest to inclusion." Now we know that trickle down idea doesn't work. 

Fri, March 30, 2012 - 12:38:04pm

Anti-immigration enforcement, demand for wealth equality and an end to poverty, and the dismantling of the criminal punishment system are some of the demands we're talking about here. "These are demands that are not winnable in American law – it's established and based in slavery, genocide and colonization, and that's what it continues to preserve, protect and promote." 

Fri, March 30, 2012 - 12:35:23pm

Spade's book seeks to provide critical trans politics. There are two tracks here. The first focuses on marriage, military, anti-discrimination, and hate crime laws. Another path, which is strong and robust but without the same corporate funding and support  has a different framework. It says, "let's help people survive and dismantle the systems that harm us and build alternatives" instead of "asking the systems to claim us as constituents." 

Fri, March 30, 2012 - 12:33:13pm

These laws are often embraced by those with a vested interest in the status quo.

Fri, March 30, 2012 - 12:32:16pm

Hate crime laws are similarly flawed – they mostly enhance penalties and surveillance systems, with the idea that prisons and police officers will protect the rights of marginalized people. Spade argues that these laws are from the perpetrator's perspective. 

Fri, March 30, 2012 - 12:30:37pm

The story that changing law will change our lives is told to all marginalized communities. Trans communities are told to follow the path of gay and lesbian rights – changing law will change people's lives. Spade's book asks if changing laws will actually meaningfully affect the lives of those facing assault, homelessness, and other issues. Yet anti-discrimination law hasn't eliminated racism. Spade argues that anti-discrimination law misunderstands how racism works – "it misses the reality that most of this racialized issues happen on the population level" – for example, the entire way that schools are funded, environmental harm is focused on certain neighborhoods. 

Fri, March 30, 2012 - 12:26:08pm

According to this narrative, supposedly there law is race-neutral, gender-neutral, and disability-neutral. "That entire story that U.S. is neutral can't say what's deep and underlying – that it's based on genocide of indigenous people." In an apparently post-civil rights era, "we're told that the government is our protector through the legal system." 

Fri, March 30, 2012 - 12:23:51pm

Systems of criminalization are organized to enforce racialized gender norms – "what it is to comply in these systems is to comply with gender norms," often enforced by violence. This is particularly prominent in the criminal punishment system. "The story in the US is if you face marginlization is: you should seek to change the law. That's a huge narrative in the U.S." Spade argues that this is a particularly anti-black narrative when the narrative says racism is over now that equality is declared by law. 

Fri, March 30, 2012 - 12:21:44pm

When SRLP meets clients, often they've been denied legal services elsewhere – services that are nominally available to low-income people are not meaningfully accessible to trans and gender non-conforming individuals, either by lawyer uncomfortability or other factors. 

Fri, March 30, 2012 - 12:18:56pm

Dean founded Sylvia Rivera Law Project, which serves low-income trans, intersex, and gender non-conforming people of color. To learn more about it, you can click here: http://srlp.org/

Fri, March 30, 2012 - 12:18:08pm

Ryan Blodgett, my co-EIC, introduces Professor Spade, who just published a book called Normal Life (reviewed on JLG's website by Alex St. Pierre). 

Fri, March 30, 2012 - 12:09:34pm

This is Kristi Jobson, the co-editor-in-chief of Volume 35 of the Journal of Law & Gender. I will be live blogging our keynote by Dean Spade just as soon as everyone is settled and having lunch. 

Fri, March 30, 2012 - 12:08:49pm

We're awaiting the start of the symposium and everyone is getting lunch. Approximately eighty people are here in Austin North. 

Fri, March 30, 2012 - 10:59:46am

Testing! 

Welcome 1Ls and LLMs,

Congratulations on your admission to Harvard Law School! If you are interested in the intersections of law and gender, we hope that you will make the Harvard Journal of Law and Gender a part of your experience at HLS.

About JLG:

Founded in 1977 and currently working on its thirty-sixth volume, the Harvard Journal of Law and Gender (originally the Harvard Women’s Law Journal) is the nation’s oldest continuously publishing feminist law journal.  JLG is devoted to the advancement of feminist jurisprudence and the study of law and gender.  By combining political, economic, historical, sociological, and legal perspectives, we seek to clarify legal issues that have gendered aspects and implications, and to confront new challenges to full social equality.   Our journal also explores the interconnections between race, class, sexuality, and gender in the law.

Ways to get involved:

• Participate in the editing of our print volume as a subciter, line editor, or technical editor.
• Help to choose the articles that we publish by joining the Article Selection Committee.
• Write book reviews, case comments or blog posts for our website.
• Participate in student writing workshops with the Student Writing Committee.
• Come to our events where we bring authors and other scholars together to discuss cutting edge issues at the intersections of law and gender.

What makes JLG unique:

• We provide opportunities for our journal members to write, both online, and in print.
• We have training for each aspect of the editing and writing process, so each member is supported in taking on a leadership role.
• JLG has a collaborative editing process, which includes an all-journal editing day (called a "subcite") and small article team dinners that allow members of the JLG community to get to know each other.

If you would like to know more about JLG or have questions about HLS more generally, please don’t hesitate to get in touch. Email us at hlsjlg@mail.law.harvard.edu.

Warmly,

Meredith Bragg and Amy Chmielewski

Co-Editors in Chief

Volume 36, Harvard Journal of Law and Gender

A student review of Gender and Culture at the Limit of Rights, edited by Dorothy Hodgson.

Philadelphia, PA.  University of Pennsylvania Press (2011). 312 pages. 

Review by: Brooke Willig*

Click here to access a PDF version of the book review.

Drawing on diverse case studies from the United States, Africa, Latin America, and Asia, Dorothy Hodgson’s anthology Gender and Culture at the Limit of Rights seeks to expose many of the assumptions and implications underlying the current clamor for “women’s rights a[s] human rights.”[1]  A critical look at how rights-based frameworks incorporate and transform local gender relations, the book frames itself around global understandings of “gender,” “culture,” and “rights.”  Despite the anthology’s perhaps overly ambitious aims, the contributors successfully prevent the work from devolving into vagueness and generalities through close readings of specific cultural moments and skillful evocations of pivotal motifs.  Each author employs a different methodology and perspective—from analysis of historical images[2] to close reading of one female politician’s radio interview[3] to recollections of personal interactions with rural Egyptians[4]—but the anthology coalesces around shared concerns for the over-valuation of human rights frameworks as a means of advancing women’s rights.  The anthology’s breadth and evenhandedness, however, force it to fall short of the promise of its introduction; though the contributors derive valuable insights from their portraits of global gender relations, they fail to synthesize these insights to draw out major themes or answer serious questions Hodgson originally sets out.  That each piece largely pursues its own agenda seems in fact to be a product of the anthology’s most coherent and emphasized theme: the primacy of expression and need for individualized discourses in gender struggles.  This commitment, both stylistic and substantive, to the “complexity of . . . subjectivit[y]”[5] may well carry important implications for the role of human rights in gender justice, but ultimately keeps the work from delivering a central or formative message on the subject.

To examine the potential and limitations of the “women's rights are human rights” strategy, the book’s contributors look specifically at the way rights-based protocols have been analyzed, deployed, and legislated to create particular visions of gender in divergent historical and geographical settings.  Hodgson constructs an ambitious framework in which to situate these examinations.  In “Part I: Images and Interventions,” she asks contributors to “examine the discursive power of certain gendered assumptions and ideologies in the formulation and implementation of human rights”[6] as they evaluate the promulgation and use of specific cultural representations of women.  “Part II: Travels and Translations” seeks to show “how the production and circulation of human rights discourses have been engaged, appropriated, challenged and reworked in different communities”[7] by compiling essays on the “vernacularization”[8] of human rights and the direct effects of human rights work on local communities.  Last, “Part III: Mobilizations and Mediations” invites the reader to compare “distinct gendered experiences, expressions, and mobilizations of rights.”[9]

The essays expose fundamental flaws in human rights interventionism with especial repercussions for women.  For example, as Pamela Scully notes, the “practice of human rights is burdened by a colonialist understanding of culture that smuggles ideas of backwardness and savagery”[10] and that “tends to register this backwardness through gender,”[11] as shown by the pivotal role that the image of the suffering African women played in motivating the first transnational humanitarianism movement.[12]  Human rights work can thus make double victims out of women: it first inspires many home cultures to objectify and regulate women, as they seek to counter its western influence by idealizing women as pure embodiments of traditional culture and “private” objects, beyond the reach of a liberal democratic movement that separates state intervention and private life.  Salma Maoulidi, for instance, shows how “any intervention involving women becomes a key concern of those in power”[13] in Zanzibar, who then “insist on a disparate treatment for women [in such forms as modesty and marriage restrictions, in order] . . . to preserve their . . . personality as a people.”[14]  Second, humanitarian intervention allows humanitarians themselves to objectify women by treating them as embodiments of a repressive culture, emblematic victims rather than self-constructed individuals who may reasonably wish to maintain “savage” cultural practices like circumcision or polygyny.[15]

The anthology exposes as a second flaw in the human rights movement its activists’ equation of development of human rights with progress for women, suggesting instead that practices deemed human rights violations by outsiders may in fact serve to empower or enable women locally.  Both Scully and Hodgson notably question the vociferous opposition to female genital cutting, positing that forbidding women to teach the custom may significantly undercut the role of female elders in African society and thereby reduce women’s overall ability to aggregate status and power. [16]  Maoulidi similarly problematizes the much-decried use of early or arranged marriages, showing how Zanzibari families defensively used such unions to forestall hostile, politically-mandated intermarriages and consequent familial ruin.[17]  The anthology also gestures at the possibility that humanitarian aid may conversely hinder gender justice.  For instance, while admitting that humanitarian intervention served to create greater space for women to develop and express their rights, Caroline Yezer highlights the significant emasculating consequences of the de-militarization of rural Peru, which, in turn, inspired widespread nostalgia and appetite for the troubling authoritarianism and traditional gendering of the pre-conflict state.[18]

More fundamentally, the contributors expose the gender bias in human rights’ structural privileging of the public over the private sphere.  As has long been documented, the success of women’s rights requires intrusion into a private sphere to which women have been subordinated. Yet current rights frameworks provide inadequate state-run mechanisms to compel private actors to enter civil society.[19]  The human rights movement’s total reliance on states to negotiate, implement, and enforce rights then poses a heightened danger for women, whose domestic isolation often forces them to face sexual violence and political inequality without legal recourse.  At the same time, the essays remind us, the human rights movement retains a necessarily transnationalist grounding, which treats the development of national laws and rights as a means to international justice rather than an end unto itself.  This approach, however, creates its own problems for women, many of whom fight for women’s rights only to reclaim national and cultural citizenship,[20] and who face additional logistical difficulties in becoming part of a transnational movement.[21]

As it teases out these tensions inherent in “women’s rights a[s] human rights,” the book finds its true strength in the construction and elaboration of subtle motifs through disparate essays.  For one, though Hodgson claims to have concentrated discussion of images in Part I, contributors throughout emphasize specific, vivid portraits of women as a critical means of both interpreting and promulgating women’s rights.  Scully opens the anthology with the most direct indictment of an image, focusing her critique of human rights on its preoccupation with the “figure of the black woman vulnerable to terrible depredations”[22] found in literature and pamphlets, a belittling portrait that Scully argues impelled the abolitionist movement and still impels modern humanitarian intervention against “African patriarchy.”[23]  Hodgson also weighs the potential against the peril inherent in the image of the African woman: she compares the Maassai Women’s Development Organization’s (“MWEDO”) valuable humanitarian efforts with that NGO’s exoticization and misperception of Maasai women, as it literally capitalizes on Maasai female appearance (“they make good photo-ops!”)[24] and fixates on representations of genital mutilation rather than less graphic, if more grave, problems like economic disparity.[25]  Even images created by women themselves in pursuit of gender justice are shown to carry mixed messages: as with Oaxacan women’s self-descriptive rallying cry of “short, fat, and brown, and the face of Oaxaca,”[26] such representations often contain a self-deprecating undertone that mitigates against their progressive purpose.  These recurrent images thus ask the reader to remain critical of even—perhaps especially—those materials meant to inspire gender advocacy and, in so doing, provide a microcosm of the book’s central critique of human rights frameworks: human rights, like the images they rely upon, may circumscribe women’s potential even as they seem to increase it through access to aid and politicization.

More centrally, the essays subtly underscore the primacy of gendered voices.  Grounding their analyses in transcripts of Kenyan women’s radio addresses,[27]  Indian street plays decrying domestic violence,[28] Egyptian campaigns to end harassment through text messages,[29] interviews with women taking over Mexican media,[30] and poetry from a male immigrant detainee, [31] the contributors demonstrate the value of human rights in literally giving voice to the repressed or underrepresented.  Indeed, the authors repeatedly reference the recent case of Jessica Gonzales, who sued the police for failing to enforce a protection order against her estranged husband as he kidnapped and murdered their three children,[32] as a hopeful symbol for the women’s human rights movement.[33]  After state officers and U.S. courts, who purport to recognize human rights, denied relief, Gonzales refused to be silenced and became the first American woman to successfully demand a direct hearing by the Inter-American Commission on Human Rights ("IACHR”).[34]

The contributors’ concern for and reliance on individual voices, however, serves equally to highlight the limitations and suppressive elements of human rights frameworks for gender justice.  For one, Robyn Rodriguez, in her discussion of male immigrant detainees, reveals human rights workers’ reliance on stock narratives emphasizing treaty violations or the individual’s economic contributions to society in crafting rights claims to appeal to public enforcers.  She contends, however, that only by allowing men to refuse these stock narratives and instead make unique, affective claims about their familial obligations and associations will they be able to rebut judicial bias and avoid the injustice of the immigration system.[35]  The human rights movement also stifles expression when NGOs claim to speak for indigenous women’s interests, thereby forcing those women to combat their false representation by both men and activists and to find voice enough to declare that “these are not our priorities.”[36] This struggle is particularly difficult when humanitarians have first provided the terms of gender justice, some of which literally cannot be translated.  Hence, the process of “vernacularization” posited by Levitt and Merry becomes essential:[37] particularly for women with less access to public speech and transnational debate, key human rights discourses must be translated and re-negotiated in local contexts, allowed to arise or adapt organically to native women’s issues rather than imposed wholesale.[38]  Indeed, this vernacularization must be so open as to recognize even the absence of speech as a part of its positive process, as Stephen’s discussions with Oaxacan women remind us that the very concept of speech itself is not gender-neutral, and that the feminization of silence remains a major obstacle in bringing women to the public sphere and women’s rights to the private.[39]  Thus, while organic and progressive speech remains their aim, activists cannot force women speak up when to do so would simply be to impose masculine standards of speech on women.  Activists must also create a visible space for the long-obscured “center-women,” who operate behind the scenes, [40] and encourage these seemingly silent women to influence or control speech, even if they cannot yet produce it.  Only by acknowledging both women’s silence and their local reinterpretations of human rights discourses as valuable “other kinds of leadership,”[41] the book suggests, can human rights workers fully incorporate and promote native women’s interests.

If the book reaches this key analysis through motifs and examples, however, it shows serious fissures in its attempt to directly engage the major terms of debate.  First and foremost, the anthology fails to live up to its claim to truly examine gender rather than women.  LGBT issues pop up only cursorily, with no essay focusing on the framing of sexual orientation through human rights discourses.[42]  Similarly, though Hodgson’s introduction avers that one must understand “the meanings and practices of being a ‘man”” in order to understand those of women,[43] only two essays directly confront the relationship between masculinity and human rights, and even these essays allow their claims about the emasculating effects of humanitarianism[44] or the stigmatization of male homosociality in human rights litigation[45] to go largely undeveloped.  Moreover, though almost every essay concurs that women are used globally to (literally) embody local culture,[46] no contributor addresses why other groups—children, in particular, spring to mind—do not or perhaps cannot serve as additional or alternate cultural centers.

The book also fails to adequately address the inherent gendering of human rights as a concept, focusing instead on how particular human rights discourses hinder or obscure women’s rights in specific cultural contexts.  Though several essays decry human rights’ dependence on the idea of the autonomous, secular male citizen, for instance, they spend little time investigating the basis for that reliance, nor do they suggest whether human rights is theoretically incapable of, or merely averse to, accommodating a communal, religious, and/or female model.  Other fundamental questions are raised and left unanswered by the essays’ look at the basis of humanitarianism: if, as Scully contends, human rights work is necessarily motivated by empathetic concerns for vulnerability,[47] do human rights workers essentially feminize or emasculate those currently without or seeking rights?   Can activists successfully dissociate weakness or victimhood from gender when they consistently label women as the most in need of external intervention?  Moreover, should we nevertheless encourage NGOs to achieve their aims without painting those they help as victims, weak, and in need of rescue, even if they are capable of un-gendering notions of victimhood?  These and other critiques of the essential gendering of humanitarianism linger at the edges of the anthology, playing a weak second fiddle to critiques of its effect on known women’s issues and women’s rights violations like domestic violence, arranged marriages, and women under Islam.[48]

The anthology further falls prey to endemic problems of disaggregation, allowing its essays to evaluate human rights concepts without a shared emphasis or direction.  Indeed, some essays barely use the term “human rights,” looking exclusively at the progression of a women’s issue in a location and merely mentioning in passing that transnational discourses have shaped the local movement.[49]  Only a few essays (namely, those of Scully, Merry, Stephen, and Mary Jane N. Real[50]) consciously build off each other by each directly questioning human rights’ ability to incorporate concerns for gender and culture.  The result is a collection of insights on a topic, rather than a directed investigation into the controlling question the introduction explicitly sets out: how can the intersection of gender and culture reveal the limitations of human rights?  More problematically, this aggregation of disparate insights leaves the work without a clear and cohesive message, even a provisional one.  The authors’ quest to neither “easily celebrate [n]or condemn the current ascendancy of the ‘women’s rights are human rights’ framework”[51] is laudable in its commitment to a thorough and neutral critique, but their deliberate evenhandedness leaves the work’s defining statement as the vague truism that human rights frameworks present both advantages and disadvantages in pursuing gender justice.  Perhaps, given the centrality of such frameworks to the current women’s rights movement, the anthology’s acknowledgment of the difficulties of applying human rights to gender struggles represents a more powerful expression of dissent than its seeming equivocation would lead an unfamiliar reader to believe.  However, one still cannot help but wish these authors would expand, if not strengthen, their critiques beyond acknowledgment of human rights’ imperfection.  If they cannot fully celebrate or condemn the movement, they can still probe more deeply into its first principles to see if its implementation can be successfully modified, or to use the complexity of the issue to craft more definite or nuanced solutions.

Ultimately, then, the book’s strongest message must be found in its unstated yet persistent emphasis on individual, local voices, which can perhaps be elevated to a cautious approbation of culture in effectuating women’s rights and human rights work.  This is, of course, not to suggest that the contributors condone the continuation of oppressive or misogynistic practices in the name of culture, but rather that they repeatedly recognize the significant role played by local culture in the key process of “vernacularization.”[52]  Indeed, if there exists a consistent enemy of the contributors, it is notably not the cultural repressors so vilified by foreign activists, but the activists who seek to impose human rights from the outside, heedlessly trampling culture and local voices in the process.[53]  The lauded prioritization of vernacularization and its interweaving of rights with culture also entail an acceptance of varying directions of gender justice, even if the methods or issues chosen “are not our priorities.”  It seems no coincidence that Hodgson’s own piece takes “These Are Not Our Priorities” as its title, nor that the book and individual essays pointedly refuse to take any stand on what those priorities should be.[54]  Rather, the anthology demands that women and activists maintain only one priority: commitment to enabling women to express and demand their rights—women’s or human—in their local cultures.  Human rights frameworks, the anthology suggests, are most effective and least problematic when used to “create[ ]space for alternative . . . discourses regarding gender identity,”[55] and understood as discourses meant to foster different, original, and organic expression.  In portraying this nuanced and cautiously optimistic vision of the role of human rights discourses in enabling gender justice, Gender and Culture at the Limit of Rights succeeds beautifully.

Transgenderless
Elizabeth Glazer and Stevie Tran

Transgender Immigrants in the United States, Bridging Movement Gaps Towards Increased Security
Pooja Gehi

Student Symposium Notes

Lost in Transition: The Challenges of Remedying Transgender Employment Discrimination Under Title VII
Jason Lee

Trans-cending Space in Women's Only Spaces: Title IX Cannot Be the Basis for Exclusion
Katherine Kraschel

Symposium Comments: Recent Developments

Comment: O'Donnabhain v. Commissioner of Internal Revenue
Lauren Herman

The Massachusetts Transgender Equal Rights Bill: Formal Legal Equality in a Transphobic System
Jean Strout

Article

Tempering Idealism with Realism: Using Existing Criminal Justice Responses to Overcome Minimization and Denial, and Promote Acceptance of Responsibility in Cases of Gender-Based Violence
C. Quince Hopkins

Student Article

No End in Sight: Why the "End Demand" Movement Is the Wrong Focus for Efforts to Eliminate Human Trafficking
Stephanie M. Berger

March 2, 2012, 12:00-1:00 pm

Wasserstein 3018

Please join us for an event with Fatma Benli, a Turkish lawyer and women’s rights advocate, to discuss the state of women’s rights in Turkey and her personal journey as a headscarved lawyer in a country where women are banned from covering their hair in public places.

Ms. Benli will discuss her personal experiences and challenges, as well as her tireless work fighting violations of women’s rights, not only with respect to the high profile headscarf ban, but also the high incidence of domestic violence, honor killings and parts of the criminal code that discriminate against women.

Lunch will be provided.

Fatma Benli, a lawyer, was named one of “The 500 Most Influential Muslims in the World” in 2009 by the Royal Center of Studies of Islamic Strategy in Jordan and Georgetown University. She has been on administrative boards for various women’s associations and judicial associations for 12 years. She has published numerous books and articles regarding headscarf ban, freedom of expression, the European Court of Human Rights, women’s rights, and violence against women.

Sponsored by HLS Advocates for Human Rights, Women’s Law Association and Human Rights Program.

Boston, MA.  Beacon Press.  264 pages.  $26.95 (hardcover).
 
Posted: February 16, 2012 at 9:02 p.m.

Review by: Elizabeth Jensen
Harvard Law School
Class of 2014

Click here to access a PDF of the book review.

In Defense of Woman is more than a story about a feminist attorney.  It is the story of a woman who entered a still bigoted profession, and carved her way.  It is the story of the clients she took on and the causes for which they fought.  Gertner writes candidly about the costs as well as the rewards of her life in law up to her appointment as a federal judge in 1993.  For aspiring female attorneys, Gertner’s book is an insightful read. 

Since the start of her career in 1975, Gertner early began keeping a “Sexist Tidbits” file, the kernels of many of her book’s stories.[1]  These anecdotes could have the effect of moving the reader from outrage to outrage, pulled along by a sense of anger at an anti-women establishment, but Gertner’s candid writing and thoughtful insights keep the work from falling into this trap. The sexist comments by judges, comments about plaintiffs and about herself, the news clippings and court room incidents that arose from the entrenched old boys network—all are painted into a portrait in shades of gray rather than in black and white.

We get an idea of Gertner’s motivation and shaping forces through her description of her close relationship with her very traditional father (he did not approve of her mother working or driving).[2]  Gertner writes that through their debates—really more like arguments—she learned to disagree vehemently while still respecting and even loving her opponent; that growing up she did not have women role models doing what she wanted to do; and that although she loved and respected her mother, she did not want to become her, or so she thought.[3] As a young female attorney she forged her path without clear guideposts.

Much of Gertner’s professional life was spent, as suggested by her book’s title, defending women: sexual harassment, sexual discrimination, malpractice, battered women, abortion, lesbian women seeking custody of children. The book tells the stories of Gertner’s life and her cases, recalling the legal choices as well as the personal decisions behind them, both client decisions and decisions she made about her own professional and moral compass.

Gertner writes fluidly about the legal strategizing, her prose painting firm, clear strokes.  Her first case, defending anti-Vietnam activist Susan Saxe in a murder charge stemming from a bank robbery, presents both the ideological and procedural considerations. Saxe was a defendant heavily involved in her own case, and wanted the legal team “to reflect her feminism.”[4]  Gertner had to teach herself legal procedure.  Legal work was like “learning a language”[5] and immersion was the way to learn quickly.  She describes in deft detail the intense preparation for court and the payoff: an unexpected victory in her first major case.

The Saxe case went for months before Gertner and her team nailed down a substantive argument.  Throughout her book, Gertner emphasizes the creative thinking needed for substantive reasoning.  These creative arguments are a good window into the evolution of the law, of the evolving definitions of medical malpractice and sexual harassment.  Gertner utilizes an advocate’s approach as she presents these issues, leaving the reader curious about as to what Gertner herself thought of the decisions and compromises she made. 

Though we’re left wondering how Gertner the lawyer felt about some of the gray she encountered in her work, discussing controversial issues through the lens of cases and stories gives the work emotional pull. While we wish to hear the reflections of the advocate, her silence leaves room for readers to reflect for themselves on the gray areas.  The case of a physiatrist who started a sexual relationship with his client illustrates this point.  At the time, there were questions about whether such conduct even qualified as malpractice.[6]  He called it “therapy”[7] and said that his client’s problems were not his fault, as “she was a ‘global disaster’ long before they met.”[8]  As expected, Gertner argued passionately against this self-serving characterization. She writes that in this environment, not knowing much about medical malpractice was unexpectedly “a strength.”[9]  She would focus her argument on how the exploitation and dehumanization of the situation ran directly counter to the purposes of therapy.  It was a new concept of malpractice, but one that fit well within the existing framework.

In the end, she writes of the legal process as a kind of “‘law cure”’ that helped her client develop agency and confidence far more than her years of therapy ever did.[10]  At the same time, the client did not consider herself to be an actor in the ongoing evolution of the meaning of medical malpractice.  When asked later to testify in another case brought against the same physiatrist, her former client refused.[11]  Gertner ends the chapter with a discussion she had with her hairdresser. He tells her about a jury on which he had served.  It was a malpractice case against a psychiatrist for sexual improprieties.  Without other women coming forward, the jury was unable to convict.  Gertner asks the defendant’s name and learns that it was Dr. X, the defendant from her own case.[12]  She does not write of any emotional response she had to the news, and it is left to the reader to reflect on the choice of the client not to testify and what it means that Dr. X continued his practice. 

Both the Saxe case and the Dr. X case are illustrative of the way in which Gertner combined “‘insider privileges’” with an “‘outsider consciousness.’”[13]  For Gertner, being a successful woman in the profession required carving out an identity in the old boys network.   However, this familiar theme could have been further elaborated.  While Gertner was clearly an outsider to the traditional old-boys network, her atypical clients and innovative arguments provided the foundation on which to build a successful and distinguished career.  Such clients and causes of actions meant the outsider was coming into the courtroom.  While the existence of the Sexist Tidbits file was itself a coping mechanism for the sexism she encountered, Gertner’s own success seems in some ways to belie the difficultly of the problem.  In many ways, Gertner seems to credit her very outsider status as giving her the opening she needed to carve out her place in the system, a circumstances which could have been further explored throughout the work.

As a young woman, Gertner was better able to relate to certain clients and young jurors, and was seen as a more appropriate face for certain causes.  She was the “flower child” lawyer,[14] the female advocate with the seventies sensibility and the Yale law school training.[15]  This outsider status gave her cachet and media attention, providing a strong, early foundation on which to build a successful practice.  One wonders how Gertner’s experience compared to young male lawyers, right out of law school, who did not have an outsider hook to carve out a courtroom identity. 

Gertner’s story is also one of transition from the “flower child”[16] advocate into a more traditional professional role.[17]  She recalls that early on she was opposed to what she thought professionalism meant, as she felt that it “separated the lawyer from the client [and] encouraged elitism.”[18]  This attitude changes, and the reader yearns for more self-reflection on this point. Certainly, there is plenty to suggest that the transition to the more professional route was not smooth.  When working with her male partner to defend a political corruption case, her male partner would get the press.[19]  Though Gertner had practiced law for over twelve years, some still assumed that he was the one pulling the strings.

When she took high profile cases which were traditionally handled by the male establishment and not linked with what might be viewed as women’s causes, she gathered even more fuel than usual for her Sexist Tidbits file.  She writes that in truth these high profile political cases belonged to her male partner, not herself—she was brought in for her trial expertise. [20]  While Gertner argued and won against many male attorneys and carved out a place in the male-dominated courtrooms, the cases in which she developed her skills involved female clients or women’s causes.  Even when she later took a main role in the trial for the case, she was not given credit in the press.  Despite successful and extensive trial work she was not considered among the “top trial lawyer[s]” appropriate for a notorious political case.[21]  The idea that there may be certain areas of the law in which men assume women are not found or should not be taken seriously is a major issue that deserved further exploration in the book.  As a reader I would have liked more discussion about the differences between being a female attorney working on “feminist issues” versus working on traditional, male dominated cases. 

After the political corruption cases, Gertner discusses another incident which may be considered a woman’s issue, a rape case—but in this case, she represents the alleged perpetrator. Though at first reluctant to take the case, she ultimately does because she believed he was innocent.[22]  She talks of his case in a chapter entitled “A ‘So-Called’ Feminist,” starting the story at the end, when her feminist credentials are challenged for taking and winning the case.[23]  From the side of the defendant, the reader can see the dangers when the pendulum, even in the case of rape, swings too far in the direction of the accuser.  Her discussion illustrates the role politics played in the case. It had become politically risky to find against a plaintiff in a rape case, as courts were reluctant to “send the wrong message” in this developing area of law.[24]  Believing her client’s innocence, Gertner won a victory even more sweeping than she could foresee, setting a precedent which pushed the pendulum back toward defendants by giving judges greater ability to overturn cases by giving them the option to review psychotherapy-patient records.[25]  Beyond merely recognizing the shades of gray in the system, Gertner herself was willing to take on shades of gray herself, and endure the political flak from groups that saw the world in black and white.  She ended up pushing the pendulum in both directions, setting up a deep-seeded impression of the need for balance which would be invaluable for the next stage of her career.                 

Gertner ends her book with her appointment as a federal judge.  It is a testament to the engaging prose and lively insights that on reaching the end of the book, one wants to know more of that next chapter of her life and her perspective from the bench.  Gertner writes about the female judges she encountered, usually followed by the observation that they were the first female judge in that district or the only female judge on that panel.  There is a sense of satisfaction as Gertner joins their ranks in the end.