Around the Institute

The prospect of hearing from United States Supreme Court Justice Ruth Bader Ginsburg in an unusual, casual format attracted an overflow crowd to the opening session of the Radcliffe Institute’s seventh annual conference on gender. Titled “Gender and the Law: Unintended Consequences, Unsettled Questions,” the conference on March 12 and 13 featured more than thirty judges, lawyers, and scholars from different countries and cultures sharing their perspectives and life experiences to illuminate the constantly shifting interplay—at times collision—of gender and law.

Opening the conference, Radcliffe Institute Dean Barbara J. Grosz said, “The work of our speakers makes clear that issues of gender and the law are not women’s questions, but everyone’s questions.” The Radcliffe event was an opportunity “to imagine living the life of a person differently situated, to imagine oneself as in a different body, perhaps of a different gender, with a different family, working a different job, in another part of the world, under a different legal regime.”

Acclaimed former New York Times columnist and Pulitzer Prize winner Linda Greenhouse ’68—whose articles, as the dean put it, “constituted the unofficial record of every major case” that came before the Supreme Court—guided a wide-ranging conversation with Ginsburg; Nancy Gertner, a judge of the United States District Court of Massachusetts; and Sandra L. Lynch, the first female chief judge of the United States Court of Appeals for the First Circuit.

Noting that she, Gertner, and Lynch “all came of age in a world Ruth Bader Ginsburg helped create,” Greenhouse mentioned her surprise at seeing Ginsburg, who had recently undergone surgery, present for President Obama’s inaugural address to the nation in January. “I was there because I wanted everyone to see there’s a woman on the Supreme Court,” explained Ginsburg.

Her historic contributions to promoting equality for women under the law were the touchstone of the conversation. For nearly a hundred years, the high court “never saw a gender classification it didn’t like,” Ginsburg noted acerbically. Case after case disregarded the interests of women, among them Hoyt v. Florida of 1961, in which the Court upheld an all-male Florida jury’s conviction of Gwendolyn Hoyt for murdering her unfaithful husband, ruling that states could exclude women from serving on juries. “The Supreme Court had no equal protection doctrine covering sex discrimination,” Ginsburg said. “It was okay to privilege men over women.”

She determined to change this. As a Rutgers law professor and founding codirector of the ACLU Women’s Rights Project, Ginsburg devised a litigation strategy that subjected gender classifications to new scrutiny under the equal protection clause of the Fourteenth Amendment. She carefully chose what Lynch termed “daily-living cases”—for example, women in the military who were denied the housing allowance and other benefits given to men; or men who were prevented from claiming the same social security survivor’s benefits to which women were entitled. In just over two decades, from her early work on Reed v. Reed of 1971 to her announcement from the Supreme Court bench of the headline-grabbing United States v. Virginia et al. [VMI] decision in 1996, Ginsburg transformed the status of women in the law. Because of Ginsburg, said Lynch, “it became immoral, irrational, and just plain stupid to deny women opportunities just because they are women.”

Turning to the present, Greenhouse noted that a “subtler, opaque discrimination exists.” Gertner cited the concern of women lawyers who feel that law firms are not “family friendly” and often make career advancement untenable. Progress in equal treatment for women and men “could be lost in two generations,” warned Lynch. “We need to maintain and move forward.”

Unsettled questions include the ultimate fate of Roe v. Wade. “The next generation of women don’t understand the implications of not having reproductive rights in the law,” said Gertner, who litigated the 1981 case Moe v. Secretary of Administration and Finance, which established reproductive rights under the Massachusetts constitution. Ginsburg added that if courts override Roe v. Wade, the real impact “will be on the poor, for women of means will never lack access.”

Gender and Schooling

A 2006 revision to Title IX, giving public school systems nationwide more latitude in offering single-sex education, was pivotal in the “Gender and Schooling” panel discussion led by Martha Minow EdM ’76, the Jeremiah Smith, Jr. Professor of Law at Harvard Law School. The New York Times has called this federal rule change “the most significant policy change on the issue,” Minow observed, yet “most people don’t know about it.”

The resurgence of single-sex ed “is cause for concern and hope,” said Kimberly Jenkins Robinson, a law professor at Emory University School of Law. On the one hand, single-sex education has a troubled legacy, from finishing schools to the VMI all-male admissions policy dismantled by the Supreme Court. But the return of single-sex ed to public schools can also bring substantial benefits for minority and low-income communities, and “there’s desperation in the inner city to see something work,” Robinson said. She thinks a sex classification need must be proved—that single-sex education should be an option but carefully monitored.

The Market, the Family, and Economic Power

In part one of “The Market, the Family, and Economic Power,” convener Janet Halley, the Royall Professor of Law at Harvard Law School, offered an etymological explanation of the word economy, originating in the Greek word oikos, “which in English until the middle of the eighteenth century meant the productive household.” Over time, through capitalist influences, economy stopped meaning household and started meaning finance, thrift in a business, or the world of the market, she said. In the process, “we’ve forgotten the family in the economy.” Panelists exploring this connection included Beshara Doumani RI ’08 and Vicki Schultz JD ’81, RI ’01, the Ford Foundation Professor of Law and the Social Sciences at Yale Law School, who discussed her project examining whether “the access to legal marriage will make gay and lesbian couples less egalitarian in their household practices—that is, in the way they divide up household labor.” She noted that research to date has shown same-sex couples to be as egalitarian as heterosexual couples, if not more so.

Moderating a roundtable on the family and the economy, Margaret H. Marshall, chief justice of the Supreme Judicial Court of Massachusetts, introduced Alice Kessler-Harris BI ’77, RI ’02, the R. Gordon Hoxie Professor of American History at Columbia University and a renowned author, as “the great American historian of women in the labor force.” Unsettled matters that Kessler-Harris is pondering include a question on which the United States is “particularly stuck”: When and how does the law treat women as family members and as individuals? Although Title VII gave women access to the law as individuals, the law neglects the family dimensions of not only women’s work, Kessler-Harris said, “but everybody’s work.” The law introduces equality, “but also enormous potential for inequality.”

Mona Zulficar, a senior partner in the Shalakany Law Office in Egypt, described the long struggle to advance women’s rights in Egypt. As she listened to Ruth Bader Ginsburg, she said, “I had tears in my eyes: it is the same for women everywhere.”

Gendered Bodies

The “Gendered Bodies, Legal Subjects” panel was led by Jeannie Suk, an assistant professor at Harvard Law School, and gained a social-conservative perspective from Maggie Gallagher, president of the Institute for Marriage and Public Policy, nationally syndicated columnist, and outspoken opponent of same-sex marriage. There is a growing assumption among judges, lawyers, and activists, said Gallagher, that “the person who intends the baby is conceptually the parent.” This ignores the fact that it is women who “physically make the next generation.” Degendering marriage, she fears, will have the unintended consequence of making invisible “the risks women take, the work we do, the protections we need to pursue equal opportunities and devote ourselves to the next generation without getting hurt in the process.”

Hauwa Ibrahim RI ’09 of Nigeria, the Rita E. Hauser Fellow at Radcliffe this year, talked about her work as a defense attorney representing women condemned to death by stoning for having sexual relations with a “non-husband male” under the criminal law of Islamic Sharia enacted in northern Nigeria in 1999.

Ibrahim emphasized her use of “intuition” as a strategy in a risky legal climate. During an early case that attracted international media attention, a broadcast interview of Ibrahim sparked intense reactions, including those of mullahs who called her anti-Islam and anti-Sharia and declared that she too should be stoned to death. Ibrahim asked a reporter to arrange an introduction and went before eight mullahs in a mosque. She sat on the floor rather than accept the offered chair, her head bowed, not gazing into the mullahs’ faces, in keeping with her culture’s values, “because they are men.” When they demanded she sit on the chair, she replied, “How can I sit on a chair when you, my fathers, are sitting on chairs?” She told them she wanted to do what was right for her society and needed their wisdom: “I got their ears—this is my dynamic and I decided to walk within it.” The mullahs told her they would not publicly support what she was doing, but would not publicly oppose her either. “That was very important and powerful,” said Ibrahim. “One hundred fifty cases down the line I am alive and doing the cases.”

Gendered Citizenship

For the final conference panel, “Gendered States of Citizenship,” convener Jacqueline Bhabha, director of the Harvard University Committee on Human Rights Studies and a lecturer at both the Kennedy School and Harvard Law School, defined citizenship as “the relationship between the state and the individual—at its best a beneficial exchange.” She asked panelists, “What difference does gender make to this relationship?”

Brenda Marjorie Hale, the first and only woman Lord of Appeal in Ordinary, the English equivalent of a United States Supreme Court justice, explored the relevance of gender to judging and in migration. Hale noted that the Geneva Convention and Protocol Relating to the Status of Refugees “do not offer international protection to people who have a well-founded fear of persecution on account of their gender.” She recounted a high-profile case she helped decide involving a young woman seeking sanctuary to avoid genital cutting in her native Sierra Leone. As the sole female law lord, Hale made an outspoken argument supporting the young woman’s successful claim that was widely publicized as “difference making a difference.” If women judges indeed “make a difference in how cases actually are decided, is it right that we do?” pondered Hale. “I argue that it is, but it is very much an open question.”

The last speaker, Ayelet Shachar, a professor of law and political science at the University of Toronto, struck a somber chord. Post 9/11, she said, “the legal distinction between member and stranger is back with a vengeance.” Worldwide, citizenship laws continue to largely define membership by the “feudal mechanism of birthright.” Women are most vulnerable to citizenship inequities, and current immigration trends will most likely worsen their status. Shachar gave the hypothetical example of two girls—Amanda, born in the United States, and Hamida, born in Malay—who received dramatically different rights at birth. She asked, “Why isn’t Hamida entitled to the same opportunities as Amanda?”

In closing, Grosz exclaimed, “I’ve heard more unsettled questions than I’d ever imagined.” The conversations would continue, and so, too, the research and practice on many fronts. As Hauwa Ibrahim urged listeners, “Remember: we come from different societies, with different challenges. What strategy works for you? Don’t hesitate.”

Julia Collins is an independent writer and editor.

To watch the conference presentations, visit http://www.radcliffe.edu/events/video_conferences.aspx.

Photos by Tony Rinaldo

Return to Around the Institute