The UCLA Journal of Gender & Law (formerly the UCLA Women's Law Journal), established in 1989, is dedicated to the critical analysis of gender as it is structured and reinforced by the law and legal institutions. Integral to this mission is the promotion of scholarship that attends to the ways that race, class, ability, sexuality, nationality, religion, and other forms of marginalization constitute and intersect with gender as a lived and legal reality. We strive to incorporate critiques of the law as a tool of oppression, as well as solutions for collective liberation that operate within and beyond the law.
Volume 28, Issue 1, 2021
Table of Contents
Women as an Identity and Its Intersection with the Law: "Gender Justice and the Law" and Theoretical Practices of Intersectional Identity
When students enter law school, they are introduced to a formulaic world where success depends on the individual’s ability to apply law to facts. The law is the full story, unconcerned with background, circumstance, or situation—that is, the law is objective. This premise is imposed on first-year law students in their prescriptive bar courses because the main object of legal education is to pass the bar, and the bar does not care about the external, subjective factors implicated in making and applying law. But the law is not objective; it is necessarily created by humans with beliefs and prejudices that inform whom the law benefits. Beginning from this premise, Gender Justice and the Law: Theoretical Practices of Intersectional Identity (hereinafter Gender Justice and the Law)1 attempts to highlight and deconstruct the gendered prejudices inherent in certain laws. The book contains twelve essays that examine legal issues affecting women, particularly women of color, and members of the LGBTQ+ community.
The Body as Borderland: The Abortion (Non)Rights of Unaccompanied Teens in Federal Immigration Custody in the Trump-Pence Era
In 2017, Scott Lloyd, the newly appointed director of the Office of Refugee Resettlement (ORR) declared that henceforth pregnant teens in federal immigration custody could not obtain an abortion without his express consent. This quickly proved to be an impossibility on account of Lloyd’s deeply held and religiously saturated antiabortion beliefs. In justifying his denial of consent to all who sought it, Lloyd insisted that ORR had a statutory obligation to provide refuge to the unborn as well as to protect unaccompanied minors in the care and custody of the agency from the trauma of abortion regret.
This article focuses on the origins and implementation of Lloyd’s abortion-consent policy within the broader context of the Trump administration’s “pro-life” and anti-immigrant agendas, and its contestation in the much-publicized Garza v. Hargan class-action lawsuit brought by the ACLU Reproductive Freedom Project. As argued, by mapping these twinned commitments onto the transgressive bodies of undocumented pregnant teens in federal immigration custody, the policy appropriated the seemingly private and intimate in order to both punish these young women by compelling motherhood as a sanction for their infractions and deter those who might otherwise be tempted to breach the Southern border as “abortion tourists.”
The Hidden Cost of Incarceration: Women of Color Pay the Price of Legislation That Allows For Exploitive Private Profits
This Article discusses the hidden costs of incarceration that most legislators, scholars, journalists, and taxpayers overlook. A recent study shows that 45 percent of Americans have or have had an immediate family member incarcerated, demonstrating that many Americans are affected by mass incarceration. The costs of incarceration of their family member’s imprisonment fall on these members specifically and their communities generally. These expenses are typically unknown by people without first-hand experience with incarceration, whether they have been or are incarcerated, or have a family member who has been or is incarcerated. I will use my first-hand experience to explore the costs—what they are, why they exist, and who pays them.
Further, this Article draws a link between the War on Drugs—which was designed to impact and did impact mostly people ofcolor—to the identity of the people who pay the costs. The Article also connects further links the War on Drugs, mandatory minimum sentencing, and the Three Strikes law and how these three features of our criminal justice system work together to be the largest contributors to the systemic incarceration of people of color, particularly men. In fact, the supposed connection between minorities, drugs, and crimes became the highlight for President Reagan’s War on Drugs, with a clear undertone of racial regime. Near-hysteria around the War on Drugs prompted Congress to pass mandatory minimum sentencing, which subjected Brown and Black men to long prison terms and created an unprecedented rise in America’s prison population. The ripple effects of this racial rhetoric have continued to impact people of color at rates disproportionate to their white counterparts, as the realities of incarceration and the nature of the costs have severe consequences for many communities of color.
Since its enactment in 1948, the Military Selective Service Act (MSSA) has required men, but not women, to register for a potential military draft. The MSSA previously withstood constitutional review when, in 1981, the U.S. Supreme Court upheld the statute’s sex-based classification under the rationale that the purpose of the MSSA was to raise combat troops in the event of a military crisis. Because women were not allowed to participate in combat, the Court held that the statute did not need to extend the registration requirement to women.
In 2013, however, the Department of Defense eliminated all combat restrictions on women. With that policy change, the rationale for the Supreme Court’s earlier decision collapsed. Since the change allowing women to participate in combat, the MSSA has come under renewed scrutiny, with a 2019 federal district court decision holding that the statute violates the Fifth Amendment’s Due Process Clause. That decision was subsequently reversed by the U.S. Court of Appeals for the Fifth Circuit, but the Fifth Circuit declined to consider the merits of the district court decision and, instead, based its reversal solely on the rationale that only the Supreme Court may reverse itself. In addition, a blue-ribbon commission established by the U.S. Congress recommended in 2020 that lawmakers amend the MSSA to extend the registration requirement to women.
This Article provides background relating to the current controversy over whether to amend the MSSA to require women to register for the draft. It argues that the existing sex-based classification in the statute fails to advance the MSSA’s purposes. Moreover, the sex-based classification relies on archaic generalizations about the role of women, is a detriment to America’s national security,and undermines sex equality. The Article contends that the MSSA violates the Fifth Amendment and should be amended by Congress.
Juries are the most diverse institution of government. Due to the random selection of members, ease of access, and procedural rights to challenge the exclusion of protected classes, juries reflect the diversity of America far better than legislatures, courts, the bar, and virtually every other civic institution. This Article aims to do two things. First, document how juries have become more diverse along the lines of income, gender, and race; and how each of these groups had to surmount the powers that be to take their place in American jury boxes. Second, demonstrate how juries allowed marginalized groups in each of these categories to exercise political power sooner and more solidly than other institutions of government. As a result, current declines in the use of jury trials mean less-representative decision-makers will have a larger role in our jurisprudence.
You Can and You Should: How Judges Can Apply the Hague Abduction Convention to Protect Victims of Domestic Violence
This Article is written for trial judges who adjudicate cases pursuant to the Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), although appellate judges, lawyers, and scholars may also find it of interest. Trial judges are my target audience because they are the best defense against the potential injustice that the Hague Convention creates for domestic violence victims who flee transnationally with their children for safety, then face their batterers’ petitions for the children’s return.
While the Hague Convention permits the trial judge to refuse to return a child when the taking parent is a domestic violence victim,and while more people than ever before recognize the appropriateness of nonreturn in this context, the law limits the nonreturn option. In fact, many judges complain that the law is too confining; they lament having to return the child but feel as though the law gives them no choice. Legislators have refused to make the judges’ job any easier. While judges now have helpful authority in some appellatedecisions and the Hague Conference on Private International Law’s new Guide to Good Practice on Article 13(b), these sources are uneven and still insufficient. In light of this reality, this Article aims to provide trial judges, as well as their law clerks, the tools and encouragement to promote justice and safety in these cases, evenwhen the legal doctrine may be problematic.
Alleviating judicial discomfort is not my sole purpose, however. Judge Alex Kozinski once wrote, “A troubled [judicial] conscience is certainly not pleasant, but the real-life, brutal consequences of an unjust judicial decision are suffered by others.” My chief objective is to change outcomes for domestic violence victims and their children who might otherwise lose.
Stalking by Way of The Courts: Tennessee's Abusive Civil Action Law and Why All States Should Adopt a Similar Approach to Abusive Litigation in the Family Law Context
Domestic violence is a serious issue in the United States. In abusive relationships, an abuser seeks to control the victim through a variety of means, including physical, psychological, sexual, and financial abuse. Even after a domestic violence survivor escapes an abusive relationship, abusers utilize the court system to maintain control of and access to the survivor long after their relationship has ended. Abusers instigate court proceedings with the real purpose of harassing, intimidating, and maintaining control over the survivor, a practice known as “abusive litigation.” These often-meritless proceedings force survivors to continually face their abusers in court and spend thousands of dollars in court fees, ultimately leading to further financial and emotional burdens on survivors. Although courts have existing means of addressing abusive litigation, these remedies do not specifically address issues unique to abusive litigation where there has been a history of domestic violence. In 2018, however, Tennessee became the first state to address this issue by enacting a law specifically addressing abusive litigation, in the family law context, that allows courts to impose prefiling restrictions on abusers who are found to be misusing the court system to harass survivors. This Article analyzes the issue of abusive litigation in the family law context, addressing prior and existing remedies to abusive litigation, and discussing why these remedies are not enough to curb abusive litigation in the family law context. It also dissects Tennessee’s law on abusive civil actions, specifically focusing on the sanctions this law imposes. Finally, this Article suggests potential amendments to the Tennessee law, and proposes that each state should adopt similar laws in order to curb this type of abusive litigation.
Named after the two 1998 U.S. Supreme Court decisions that established it, the Ellerth/Faragher defense is an affirmative defense generally available to employers who would otherwise be held liable for Title VII claims of supervisor harassment. If the supervisor’s behavior does not involve an adverse employment action, the employer may avoid liability if it can demonstrate that: (1) the employer exercised reasonable care to prevent and promptly correct unlawful harassment in the workplace, and (2) the aggrieved employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer or to avoid harm otherwise. As employers sought to implement measures that demonstrated reasonable care, sexual harassment training and anonymous phone hotlines emerged as common strategies to assert this affirmative defense. In the contemporary workplace, where digital communication reigns and remote working becomes the new norm, such mechanisms are both archaic and ineffective in the prevention and correction of sexual harassment. This Comment critically analyzes the federal judiciary’s low threshold for “reasonableness” under the Ellerth/Faragher defense, considering specifically interdisciplinary understandings of the dynamics that motivate sexual harassment and rapid advances in technology. In addressing the law’s outdated understanding ofreasonableness, the Comment proposes the federal judiciary should (1) reexamine what qualifies as reasonable in the #MeToo era, and (2) strongly consider arguments in favor of “reasonable” including more stringent standards of care for employers reflecting technological advancements. So long as the Ellerth/Faragher defense remains the law, it is incumbent upon the federal judiciary to seriously consider evidence demonstrating what is reasonable in the modern workplace. The goal of this Comment is to suggest a comprehensive interdisciplinary approach with real-world impact—to prevent sexual harassment, rather than to correct—which carries the added benefit of mitigating employer liability.
Although the notion of a trans legal subject is an abstract one emanating from juridical texts, it impacts the lived experiences of trans people by influencing the social imaginary and informing state action. In this paper, I analyze the conception of the trans legal subject found in Québec law to draw out two historical conceptual phases—the medical and minoritizing phases—set against the same background "ius commune."