Yesterday’s New York Times ran a front page article about Liz Cheney and how she’s become the new doyenne of the Republican right. There’s much to say about what it means to have Vice President Dick (they call him that for a reason, right?) Cheney’s daughter pick up the cudgel of his father, but what I want to highlight in this post is a totally outdated slip-up on the part of the Times in the story.

In a little aside, presumably to clear up any misconception about which daughter Liz is (not the lesbian one), Mark Leibovich, the author of the article, writes: “(She is married to the lawyer Phillip Perry, but uses her maiden name.)”

Uses her maiden name? Wow, I thought we were beyond this ’50s terminology. Cheney is her last name. Perry is his last name. As the Times likes to say on the wedding page, “The bride, 34, will continue to use her name professionally.” The idea of a “maiden name” is that it’s what “maids” keep – unmarried, poor hags who couldn’t find a man. The last name girls get when they’re born (usually their father’s last name) is just a temporary moniker until she marries and take on her husband’s legal identity. In either case, women don’t have a proper legal identity of their own separate from the men whose identity determines theirs. Sorry for the ’70s feminism lecture, but how can the Times keep using this term?

But this notion of women’s names doesn’t just appear in front page articles from time to time. It’s a weekly occurrence at the Times. Check out this week’s “Wedding/Celebrations” section. No comment is made if she becomes “Mrs. So-and-so”, but some commentary must be offered if “The bride, 33, is keeping her name.” Or Ms. Whatever, 30, will keep her name.” It actually took me a while just now to find a “bride” in this week’s weddings announcements who wasn’t becoming a “Mrs.” Of course, Mr. Whosey-Whatsy never changes his name.

Just as I read about Liz Cheney “using her maiden name,” I saw a parallel report about how a bill had just been introduced into the Japanese Parliament: “Japanese Women May Be Allowed to Keep Maiden Names.” So we’re light years ahead of the Japanese on the legal rule, but not so far ahead on the cultural/social rule. Most women who marry in the U.S. still change their names, or to put it more colloquially “take their husband’s names.”

My colleague Liz Emens has written a terrific article on this issue, entitled: Changing Name Changing: Framing Rules and the Future of Marital Names. It’s in the University Chicago Law Review and I think I’ll drop a copy in the mail to Mark Leibovich at the Times, and while I’m at it send another copy to Liz Cheney just for good measure. The main ideas are:

Marital names shape our ideas about marriage, about our children, and about our selves. For about a hundred years, American states required married women to take their husbands’ names in order to engage in basic civic activities such as voting. While the law no longer requires women to change their names, it still shapes people’s decisions about marital names in both formal and informal ways.

For example, the formal legal default rule in most places is that both spouses keep their premarital names. This rule is minoritarian for women, which means it imposes a range of social costs on women who make the most conventional naming choice. But the rule is majoritarian for men, which means it does nothing to unsettle the most robust aspect of our current marital naming conventions – the fact that men almost never change their names, even to hyphenate. This fact about men’s names – coupled with the fact that children almost always have their father’s name, even if their mother makes an unconventional naming choice for herself – means that women are ostensibly choosing their marital names, but in fact they are choosing from a very limited decision set. That is, women effectively can have nominal continuity either with their past (their families of origin and premarital selves) or with their future (their children and possibly their spouse), but not across all three generations. The formal legal default that both spouses keep their names reinforces this bind for women.

Informally, legal institutions also shape choices through desk-clerk law, that is, advice given by the government functionaries who answer public inquiries at state and local agencies. These legal actors frequently mislead people and discourage unconventional naming choices as a result of ignorance or their own views about proper practice.

Because states historically reinforced a regime of patrilineal descent of names, what might seem a neutral default regime is inadequate. States should set defaults and frame choices to encourage more egalitarian decisions about whether to change names and how. States could try any number of creative solutions using existing categories for thinking about choice regimes, drawn from contract-law theory: default rules (what rule the state fills in if the parties don’t speak to the contrary); menus (what range of options parties are given); and altering rules (what steps parties must take to contract around the default rule into different alternatives). Most modestly, states could adopt a forced choosing approach, requiring both spouses to state their postmarital names. More ambitiously, states might encourage hyphenation and, at the next generation, biphenation – defined as the passing of one name from each hyphenated parent – by making this the default option.

States could also create what might be called framing rules, which would dictate how the state asks the question of parties in a choice regime. Framing rules encompass what information the state gives parties, what words it uses, what context surrounds the question, as well as the timing of the question. Framing rules are particularly important in contexts, such as marital names, where social conventions exert a strong influence on choices, and where desk-clerk law is likely to be erroneous or misleading.

Iranian President Mahmoud Ahmadinejad is back in New York for the annual fall gathering of heads of state at the U.N. General Assembly meeting.  As expected, his remarks to the body on Wednesday provoked outrage, walkouts, and general condemnation by various states and the media.  If all you did was read the press reports about it, you’d think that in his speech he once again denied the fact of the holocaust and threatened to wipe Israel off the map.  In fact, if you watch the speech, or read it, it’s much less inflammatory than the media reported, and in some respects merely echoes the condemnation of Israel’s invasion of Gaza contained in the report issued by the UN Human Rights Council Fact Finding Mission on the Gaza Conflict, led by Justice Richard Goldstone.  It’s interesting how any criticism of Israel is read as anti-semetic in this setting.

I mention Ahmadinejad’s speech because it’s hard to believe it’s been two years since he came to Columbia University as part of our World Leaders Forum.  As you may recall, Columbia University President Lee Bollinger “introduced” President Ahmadinejad with an anticipatory condemnation of what the Iranian President might say, calling him “a petty and cruel dictator,” and closed with the charge that “I doubt that you will have the intellectual courage to answer these questions.”  The tone and content of the introduction drove some members of the University faculty to bring to the full arts and sciences faculty a motion criticizing Bollinger for violating core principles of academic freedom.  See more here.

What garnered the greatest attention from President Ahmadinejad’s talk, however, were his remarks in response to a question about the mis-treatment of women and homosexuals in Iran.  He declared: “women in Iran enjoy the highest levels of freedom,” and then asserted that “In Iran we don’t have homosexuals like you do in your country.  We do not have this phenomenon. I don’t know who’s told you that we have it.”  The media frenzy in response included a New Yorker Magazine cover tying the Iranian President to Larry Craig.

Lesbian and gay human rights organizations the world over immediately condemned these remarks as ignorant and hateful.  “Of course there are gay people in Iran – we are everywhere!” they proclaimed.   But Ahmadinejad’s remarks and the responses they received demand much more complex thinking about the role of lesbian and gay human rights in global politics.  For this reason I’ve written a short paper trying to offer one such thicker reading of what happened when President Ahmadinejad came to Columbia.   I’m giving it as part of our Feminist Theory Workshop series next Tuesday, and you can read the draft here.  But it concludes:

Once we recognize that the normative homosexuality that undergirds human rights discourse is not merely a “fact” in the world, but more of complex value, it becomes easier to see how the state’s embrace of the sexual citizenship of these new human rights holders risks rendering more vulnerable a range of identities and policies that have refused to conform to state endorsed normative homo- or hetero- sexuality.  This is true both for queers whose desires refuse to orient themselves ineluctably toward marriage, or Muslims with sexual norms and practices of polyamory, homosociality, and modesty.  Under this scenario, newly patriotized gay subjects find themselves implicated, whether they want to or not, in the construction and identification of the “enemies of the state.”   Witness the ingenious strategy of StandWithUs and the Israeli Foreign Ministry to appeal to gay rights supporters in their efforts to shore up Israel’s foreign policy with respect to Palestine and Iran.

So does this discussion leave us helpless in the face of a critique that eschews both the epistemic violence of securing human rights for global gay subjects on the one hand, and state politics as cynical, manipulative, instrumental and tragic on the other?  To be sure, this is where some find themselves.  But we can do better than that.  Critical awareness of the state’s role as now-fundamental partner in the recognition and protection of a form of sexual rights should push us to regard these “victories” as necessarily ethically compromised.

The moral atrophy that has kept us from recognizing the tragedy of these strategies and outcomes is where more critical, and indeed discomfiting, work needs to be done.  By theorists and activists alike.  This means rethinking the horizon of success in this work.  “Victory” in the sense of gaining the state as a partner, rather than an adversary, in the struggle to recognize and defend LGBT rights ought to set off a trip wire that ignites a new set of strategies and politics.  This must necessarily include a deliberate effort to counteract, if not sabotage, the pull of the state to muster rights-based movements into its larger governance projects, accompanied by an affirmative resistence to conceptions of citizenship that figure nationality by and through the creation of a constitutive other who resides in the state’s and human right’s outside.

Columbia Law School’s Sexuality and Gender Law Clinic can boast another victory – this time on behalf of a gay parolee in Massachusetts.  The Massachusetts Parole Board agreed last week to give Bruce Wilborn, an openly gay inmate, a new parole hearing to settle the sexual orientation discrimination charges he brought against the board more than a year ago. The settlement comes after Federal District Court Judge Patti Saris rejected the Parole Board’s attempt to dismiss Wilborn’s claims that the parole board singled him out and treated him worse than other parole applicants because he is gay. Columbia Law School’s Sexuality and Gender Law Clinic and the law firm McDermott Will & Emery LLP serve as counsel for Wilborn.

In 1995 Lani Guinier, Michelle Fine, Jane Balin, Ann Bartow & Deborah Lee Batchel published a study of the gender-based bias and stratification of the law school experience at Penn Law School.  Becoming Gentlemen: Women’s Experience at One Ivy League Law School, 143 U. Pa. L. Rev. 1 (1995).    I often mention this article in my teaching, urging students to reflect on the role of gender not only in the law but in their legal education.  When I referred this spring in my 1L class to the findings of Becoming Gentlemen, one of the students pushed back, saying that the insights of Guinier et al.’s work may no longer hold true, or at least doesn’t hold true at Columbia.  I asked her if she’d be willing to write something about why, and here it is – Katherine Franke

Unlike the accounts described in Becoming Gentlemen, my own experience as a woman in Law School has been positive, in the sense that I have never felt prejudice or experienced a barrier because of my gender. I have never been called a “lesbian” or “feminazi dyke” because I expressed my opinion in class. Nor  have I ever been berated by a professor. I have also never thought my chances for academic or workplace success were limited because of my gender (In fact, women at Columbia have earned some of the highest markers of academic excellence, such as Editor in Chief of the Law Review and finalists in the Stone Moot Court competition).

Gender is so far in the background, such a “non-issue,” that questions of gender are not really discussed or thought of amongst my peers. As one friend remarked, “When I discuss gender stereotypes, domestic violence, or rape, I feel like alot of people don’t get it and don’t really care to.” I am one of those people. Without the efforts of friends such as the one above, I would likely forget that my life could have a gendered dimension because it is not part of my daily experience.

While I had a hard time relating to the experiences of the surveyed women, what most confused me was the way minorities were simply “lumped in” with their respective gender and the nuances of their individual experiences were ignored. The piece initially left the impression that minority women were most readily singled out because of their gender. Meanwhile, it portrayed minority men as heavy participants in gender discrimination and equal beneficiaries of the “good old boy” network.

In my own experience, the opposite is true. There is far greater discrimination and informal barriers to success because of race than gender. For example, there are few (2, that I know of) Hispanic professors at Columbia and they do not teach 1Ls. There are no cases in Con Law which describe the significant contributions towards the development of Civil Rights law by Latinos. In Crim Law, Latino is the assumed race of drug dealers.

Latino 1Ls have informally agreed to support one another in the classroom. We have formed groups and blogs to educate ourselves about issues (such as Critical Race Theory, Immigration, famous Latino cases and important Latino legal organizations) which are mostly ignored by the curriculum and faculty. We acutely feel the pressure to “represent” our community in the classroom and (someday) in the courtroom. Most importantly, we all, male and female, have felt the need to come together as a support group in a (sometimes openly) hostile environment.

A close reading reveals, however, that minority men and women in the study expressed similar views and had similar experiences 20 years ago. In the footnotes, Black/Latino men and women both expressed similar desires to “help their community” and to “represent their people.”

There was not a single example given of a Latina or African-American woman who showed a strong identity with white women on the issue of gender in the school. Rather, their statements closely mirror those of the minority men. This correlation makes it difficult to say that the experience of law school was simply “gendered”. Rather, it appears that it was more of “white male” vs. everyone else.

What is disturbing to me, however, is that these problems of race were present 20 years ago and, unlike the issues facing white women, have not been sufficiently addressed. Surveys which exclusively focus on the “gendered” experience, at the expense of race, only add to this problem because they allow a false sense of “mission accomplished.” Under the rubric offered in Becoming Gentlemen, as long as white women’s experiences improve, then both minority men and women can be “left behind”; their needs and issues delegitmatized and unaddressed.

I understand that this may place a difficult standard on researchers who seek to focus only on one variable or who are most interested in the gendered experience. But the fact that things have changed so little for many minority students, including minority women, while they have changed so dramatically for white women is something that should not be accepted by researchers interested in gender. I hope these researches are aware of the way their observations on gender and race can influence policies and perceptions, and I challenge them to confront the nuances that race adds to the experience of gender.

Priscilla Orta

Grace Tabib is a third year student at Columbia Law School and offers these thoughts on the regulation of pornography – K. Franke

As in other areas of gender study, Catharine MacKinnon’s extreme view once again forecloses the possibility of women controlling their own sexual impulses. When MacKinnon argues that all pornography is abusive to women, she is taking an absolutist position akin to an unwavering pro-life position. The Model Anti-Pornography Law, of which MacKinnon was a principal drafter, bars women from consenting to participation in a pornographic performance. She essentially likens pornography to slavery and maintains that women do not have the ability to willingly participate in its production. Furthermore, in defending the Model Anti-Pornography Law from First Amendment objections, she asserts “if a woman is subjected why should it matter that the work has other value?” Catherine A. MacKinnon, Pornography, Civil Rights, and Speech, 20 Harv, Civ. Rts.-Civ. Lib. L. Rev. 1, 21 (1985). Her refusal to allow women’s consent coupled with her underlying contention that the viewing of pornography is an act of male superiority reflects a closed-mindedness that refuses to acknowledge the individuality of women to engage in sexually liberating activities not because of men’s desires, but because of their own. Sallie Tisdale captures the alternative view that women can and should be free to make free sexual thought when she writes: “What a misogynistic worldview this is, this claim that wome who make such choices cannot be making free choices at all … Feminists against pornography have done a sad and awful thing: They have made women into objects.”

Pornography is not one-sided, but it becomes so if women are not free to have their tastes and preferences reflected by it. Candida Royalle’s initiative in founding Femme Productions and catering to a women’s market allows women to explore their sexuality within their own comfort zones. In this way, viewers of Femme films can use pornography to liberate their sexual selves. Royalle argues that the key to her films is sensuality. She understands that women approach sex in a different way from men and moves the focus away from penetration and into a holistic experience. Many groups of women – whites, blacks, lesbians, transgendered – can embrace pornography to explore sexual experience without a simplified ejaculatory conclusion.

Lynn Chancer in her article Feminist Offensives: Defending Pornography and The Splitting of Sex from Sexism, reflects a more realistic view towards pornography and its potential to liberate women. She seeks to legitimate pornography while exploring other realms of society in which women are repressed. For me, pornography should not be a focal point for women’s empowerment. Other areas of media can be much more harmful to the portrayal of women and the conceptualization of women’s role in society.

Although I am embarrassed to admit it, I saw the film “He’s Just Not That Into You” last weekend with a friend. The movie portrays women as men-obsessed, naïve, weak, and pitiful. Leaving the movie, I could not understand how any of the actresses could have agreed to participate in such a project. Maybe an ordinance against He’s Just Not That Into You – like movies would be more effective towards combating female submission.

Grace Tabib

This week, Amy Adler presented her paper entitled “Medusa: A Glimpse of the Woman in First Amendment Law,” at the Gender and Sexuality Law Program Spring Colloquium.  The following is a summary and reaction to the presentation.  (The painting below is entitled Nude Dancing by Anthony Armstrong)

Imagine you’re a shrink.  After deciding the Barnes v. Glen’s Theatre, Inc. and City of Erie v. Pap’s A.M. cases, the U.S. Supreme Court walks into your office and plops itself on your couch.  It, nor anyone else, doesn’t understand how it got to the illogical, irrational conclusion that, while live nude dance is not protected under the First Amendment, non-obscene pornographic film, which is often far more sexually explicit, is.  Somehow, the Court finds consolation in pornographic film, and in comparison, finds itself extremely uncomfortable with live nude dance.  How do you figure out what is going on here, when the court’s doctrinal explanations simply don’t make sense?  

Amy Adler, Professor of Law at New York University, seeks to do just this in her fascinating work in progress, “Medusa: A Glimpse of the Woman in First Amendment Law,” which builds on her previous work entitled, “Girls! Girls! Girls! The Supreme Court Confronts the G-String.”  In “Medusa,” Adler considers the Medusa myth, so integral to Freud’s theory of castration anxiety and fetishism (read “Girls!” for more on that), and uses it as a diagnostic tool to understand why the Court is so terrified by the “threat posed by the live, powerful female body” (to use Adler’s description) such that, to blunt this threat, it draws doctrinal distinctions between the naked woman in pornographic film and in live erotic dance. 

Here’s the Medusa myth redux: Medusa, a once-mortal-now-turned monster with snakes for hair and a stare that turns men into stone, is ultimately slain by Perseus, through his use of Medusa’s reflection on his shield.  Analogously, pornographic film tames the female body through rendering the woman as the object, not the subject, of the gaze.  Adler expands this myth to consider the relationship between Medusa and speech; Medusa strikes men dumb by her stare, and she expresses herself by arranging a sculpture garden of all the men she has turned into stone.  When Perseus slays her, he steals back the power to make Medusa the object of his gaze.  As Adler puts it, “Perseus is now free to look at her without her looking back at him.”  And, as feminist film theorists have noted, the same can be said of the role of women in film (certainly pornographic film).

Commentator Professor Philip Hamburger offered up three thought-provoking questions:  Why not attack the First Amendment doctrine itself instead of its application?  Also, what’s the concern with the marginal speech idea, since foregoing that may constitute a world in which every action is conceivably “speech”?  And would the cases (and the theory) come out similarly with a fact pattern involving a nude male dancer?  Indeed, Adler made us all think: Is the female body actually speech, and can there be a marginal space between what is “speech” and “non-speech”?  Also, what else besides castration anxiety might be so discomforting about the spectacle of live nude dance – does it have something to do with gender instability embodied by the live nude female dancer, the queering of the strip club, or the temporal nature of the live erotic dance show, that does not exist when the same conduct is relegated to a moving picture?  And where is the discomfort – does it lie with the spectacle of the live naked dancing woman, or the act of sex itself that the spectacle may insinuate?     

When a court, especially the Supreme Court, gives legally doctrinal reasons for its decisions that are simply unsatisfying, it’s often hard to know where else to turn for explanation.  Adler gives us a great example of how other methodologies, namely feminist and psychoanalytic theory, can play such an illuminating role in deepening our understanding of why courts come to their conclusions, especially in their often assumption-ridden decisions on gender, sexuality, and sexual expression.  What I find so wonderful about all of our colloquia is the opportunity that this kind of legal scholarship provides us with: a chance to bring in other disciplines to take us where legal doctrine leaves us short.   

Jeannie Chung is a second-year law student and research assistant for the Gender and Sexuality Law Program.

On Friday, February 13th we held a symposium honoring the important work of Martha Nussbaum to the scholarship of Gender, Sexuality and the Law.

The Symposium was a tremendous success, and the proceedings will be published in a special issue of the Columbia Journal of Gender and Law.

Videos of each of the panels and Professor Nussbaum’s Keynote are now available:

Feminism as Liberalism
• Carlos Ball, Professor of Law at Rutgers Law School
• Nancy Levit, Curators’ and Edward D. Ellison Professor of Law at UMKC School of Law
• Tracy Higgins, Professor of Law at Fordham Law School

History, Identity and Sexuality
• Mary Anne Case, Arnold I. Shure Professor of Law at University of Chicago Law School
• Alice Kessler-Harris, R. Gordon Hoxie Professor of American History at Columbia University
• Janet Jakobsen, Director, Barnard Center for Research on Women

Gender and Development
• Saskia Sassen, Robert S. Lynd Professor of Sociology at Columbia University
• Amrita Basu, Domenic J. Paino 1955 Professor of Political Science and Women’s & Gender Studies at Amherst College
• Aili Tripp, Professor of Political Science and Women’s Studies at University of Wisconsin-Madison

Keynote – Martha Nussbaum