Nicole Medham is a third year law student at Columbia Law School and has these thoughts about a recent 20/20 episode that caught her attention when the authors of Freakonomics were interviewed about the what and why of various implications of feminism:

Last Friday’s edition of ABC’s 20/20 featured the authors of the bestseller Freakonomics, Steven D. Levitt and Stephen J. Dubner, who were promoting the sequel to their best seller SuperFreakonomics.  During the hour long broadcast, some time was spent on the authors’ controversial views of the women’s liberation movement.  Essentially, Levitt and Dubner argue that the principal beneficiaries of the liberation movement were not female teachers or financiers, but high end prostitutes.   To that end, both men say that those who seek to “save” women from prostitution should ask and determine why women are responding to the market and becoming [high end] prostitutes in the first place.  Additionally, the authors argue that the invention of hormonal birth control gave women more control over their future occupations; therefore, instead of having to choose an occupation like a teacher which would allow for flexibility to enter and leave the work force, they could choose to become doctors, lawyers, bankers, etc.  Because of this, Levitt and Dubner claim that the talent level of school teachers has fallen, thus leading to the seeming overall failure of the country’s public school system.

Let’s take on the prostitution issue first.  Of course to some anti-prostitution advocates, there is no need to question why women choose prostitution, as it is invariably a result of the sexist and patriarchal society we live in.  Yet, I can’t help but think that Dubner and Levitt are right in that this is question that must be asked in order to make any needed changes.  In order to solve anything, one must get to the root of why the “problem” is occurring in the first place.  The women who have supposedly benefitted aren’t the stereotypical prostitute one thinks of that sets up shop on a dingy poorly lit street corner.  These are often [well] educated, well versed women who had fairly stable upbringings.  In fact, the woman profiled on 20/20 actually had a husband, children, and stable job, all of which she left to become a [high end] prostitute, due to her claims of boredom.  So  why would someone like that and the other well educated and well traveled women not want to put their brains to use in an arguably more productive way toward society and choose to sell their bodies instead?

Maybe these women are just more frank and upfront about how some relationships involving sex works.  Arguably, what these women are doing is no different than women (or men for that matter) who date people solely for money and other material benefits.  Even in popular culture, there are some marriages that have taken place where money seems to be the only answer why a particular couple was together.   And, marrying for financial gain is a historical facet of the institution of marriage.  In those cases, however, the monetary transactions take place in a socially acceptable form of a relationship.   In any event, the fact that the woman profiled on the show made $5000 a week for 10 hours of work speaks volumes, though it may speak different things for different listeners.   But, just maybe it says that she’s smarter than many other women out there.

Dubner and Levitt’s next hypothesis argues that hormonal birth control led to truly talented women leaving the teaching profession thus leading to a decline in gifted teachers in this nation’s public school system.  First and foremost, correlation does not imply causation.  To be sure, the seven and a half minute segment didn’t really delve into the authors’ method s of reasoning and argumentation.  Thus, I’d be interested to see how they made that leap.  For the sake of argument, let’s say that they are right—that control over reproduction gave women more occupational choices and power.   How does it go from that to implicitly putting the blame on women for the failing public school system?  That’s a pretty big leap, I’d say.  Why not look at the affects of the pay these teachers receive, the environment in which some of them would have to teach had they not chosen other fields, or the affect of various federal government regulations that have left many educators frustrated?  Moreover, why not take into account the fact that men can be just as effective as teachers and that they aren’t courted as heavily into that profession. Like I said, without knowing their methodology, it’s kind of hard to argue against them.  But, from what was shown on 20/20, their reasoning is tenuous at best.

Both during and after the City Bar Association panel I participated in a few weeks ago on the future of same sex marriage, I’ve gotten some push back for suggesting that we consider and evaluate the merits and risks of various constitutional arguments that have been made in the cases challenging the exclusion of same sex couples from the legal institution of marriage. At the panel, I commented that simply because a legal argument is available to us doesn’t mean we should make it. The availability of the argument merely inaugurates, rather than concludes the political discussion about why and how we should win the right to marry.

What does it mean to have an argument available and what arguments were available in the same sex marriage cases? Availability means that it has some level of plausibility – that there is some body of case law to which the advocates in the case can turn that can form a non-specious basis of having the marriage laws overturned. In the Hawaii case in 1993, for instance, the case was won on a sex discrimination argument – that barring same sex couples from marrying amounted to a form of sex discrimination in so far as the state’s marriage law allowed you to marry one, but not another, sex (men can only marry women, women can only marry men). Professor Andrew Koppelman¹ has been making this argument for years, and Professor Edward Stein², among others, has offered a sustained critique of Koppelman’s sex discrimination argument.

Most of the cases since then have stressed other arguments – Fundamental Right to Marry, Dignity and Equal Protection. The Fundamental Right argument asserts that there is a fundamental right for all people to marriage, and that the state better have a compelling, non-discriminatory reason for denying access to marriage licenses to same sex couples. I’ve blogged previously on my problems with this argument. The Dignity argument maintains that refusing to confer the blessings of civil marriage upon same sex couples confers a dignity harm upon them, by refusing to acknowledge that same sex unions are entitled to the same dignity and respect as different sex unions. I’ve blogged previously about my concerns with this argument as well. The Equal Protection argument, which won the day in Iowa, claims that an equality norm has been violated when the state discriminates on the basis of sexual orientation in access to marriage licenses. Read here for why I liked the Iowa Supreme Court’s equality argument.

Reasonable minds on the same side of an issue can disagree about the relative merits or dangers of pursuing any or all of these approaches to gaining marriage rights for same sex couples. Yet, as one audience member at the City Bar panel asked: “if we might win with the dignity argument, why shouldn’t we make it?”

Law reform litigation is not about winning at any cost. These cases are part of a larger set of political strategies that play a key role in a political movement. Each of these arguments, if successful, enable or extinguish subsequent political action in complex ways. The fundamental rights argument cuts off any efforts to disestablish or de-emphasize the institution of marriage. The dignity argument implies important judgments about unmarried people that may have implications for many people well outside the lesbian and gay community. The equality argument makes no claim about the virtues of the institution of marriage, but merely states that if the state is going to be in the marriage business it must be so fairly.

I find it odd that the lot of us who have sought to have a critical discussion about how to argue these cases are being branded as traitors and are met with hostility from some of the lawyers and activists in the marriage equality movement. This debate is healthy and politically necessary. In the early 1970s there was no unanimity as to whether reproductive rights in general, and abortion rights in particular, should be argued as a matter of sex equality, liberty, privacy, bodily integrity, decisional autonomy or dignity. Harry Blackmun was able to get 4 other votes for privacy in Roe v. Wade, but most agree today that privacy provided a fragile and unsatisfactory hook upon which to hang this important issue. Poor women have not been helped by privacy, and over time the privacy right for all women secured in Roe has been pretty porous.

Similarly, should we have won the Lawrence v. Texas sodomy law case on privacy, equal protection, liberty or fundamental rights grounds? What about a notion of sexual citizenship? Wouldn’t finding that sodomy laws violate a notion of sexual citizenship be a victory not only for sexually non-normative people such as lesbians and gay men, but also potentially shore up reproductive rights as well?

These are important arguments to keep having among all of us on the same team.

1. Andrew Koppelman, Why Discrimination Against Lesbians and Gay Men Is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994)
2. Edward Stein, Evaluating the Sex-Discrimination Argument for Lesbian and Gay Rights, 49 UCLA L. REV. 471 (2001)

On Friday, the Gender and Sexuality Law Program held its inaugural symposium, this year honoring  the work of Professor Martha Nussbaum.  Nine scholars submitted papers providing insights on  Professor Nussbaum’s scholarship, points of departure for her theories, and novel applications of her  theories to many different contexts.  Dean Schizer introduced Professor Nussbaum before her keynote  speech at the end of the day, and Professor Nussbaum gave a summary of her scholarship and ideas, and thoughtfully responded to each paper.

The diversity and creativity of scholarship and thought that came out of the symposium was really remarkable.  We covered everything from Nussbaum’s capabilities approach as applied to women’s movements (Amrita Basu), the possibility of a collective capabilities approach to women’s empowerment in Africa (Aili Tripp), and the relationship of the state to the capabilities approach (Tracy Higgins), to the application of Nussbaum’s work to the same-sex marriage debate, the LGBT community, and its relationship with science (Nancy Levit), and whether the state should be in the business of regulating marriage in the first place (Janet Jakobsen).  Nussbaum’s capabilities approach was applied to global economic systems (Saskia Sassen) and stretched from its universality to its flexibility in encouraging people of opposite viewpoints to sympathize with one another (Carlos Ball).  We learned of a historian’s perspective on Nussbaum’s reliance on the history of relationships to support her arguments about same-sex marriage (Alice Kessler-Harris), and tough questions were asked of how far the law should go in the forcing of certain types of relationships, and what emotions, aside from disgust and shame – and anger for that matter – might be appropriate for opponents of same-sex marriage (Mary Anne Case).  I fully admit, that’s not nearly the half of it; you can read all the papers in the Columbia Journal of Gender and Law’s forthcoming publication of them.

On a personal note: law school does not all too often provide the opportunity to stop learning about the law per se and actually examine its parameters and characteristics.  That the emotions of shame and disgust might problematically inform how the law is shaped, or the notion that all human beings are entitled to a range of fundamental capabilities, are concepts that add a huge depth to legal study.  This conference was a great moment to pause and consider, and I hope everyone at the end of the day felt similarly enriched.

Jeannie Chung

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

From Columbia Law School Professor Patricia Williams, via The Nation

For some years now, the biotechnology of fertility enhancement has been exalted as God’s gift to the biblically barren. A relentless narrative of entitlement intertwined with prayerfulness has framed infertility as a tragedy, an oppression, an agony, a disease. Some have proclaimed a “right” to a “natural,” biologically related child, a child “like me.” Unusually large Middle American families–some with up to eighteen children–are offered movie deals and television programs.

Against the backdrop of a cold, impersonal and lonely world, these well-feathered and overly populated nests look villagey and warm. It’s an undeniably seductive vision, even if other options like adoption and fostering are almost never mentioned. Also less discussed are the side effects of this mad race for biological generation at all costs: the likelihood of multiple births, low birth weight and birth defects; the ethics of using poorer women as fetal hatcheries; the health risks to young women who have their “Ivy League” eggs extracted for handsome sums of cash.

There are loads of good reasons to think about regulating these medical procedures; we should have come up with something other than a “free market” for them years ago. But now, with the birth of Nadya Suleman’s octuplets in Bellflower, California, we are confronting a perfect storm of eugenic outcry. With a plunging economy, all the well-rehearsed elements of the “undeserving” welfare queen are lined up: Suleman is single, disabled, unemployed, on food stamps and has six other children under the age of 8, one of whom is reportedly autistic. She lives in a matchbox-size house with her resentful parents, who think she’s insane. Toss in that funny, foreign-sounding name–which turns out to be, gasp, Iraqi!–and the backlash is in full swing.

No doubt Suleman has emotional problems. But rather than caring about her mental health, much of the media are content to pillory her as a drain on the public dole–selfish, frivolous, calculating and cruel. No Brangelina-style accolades of “God Bless ‘Em” in People magazine. Just impassioned calls to cut off her remaining sources of income and to criminally prosecute the doctor who fertilized her. The Atlanta Journal-Constitution even ran an op-ed calling for the government to appoint a legal advocate for every child born to an unmarried woman, since the “lack of a father’s guidance” must be “a major cause of [children's] suffering.” Furthermore, in the case of Suleman’s children, “the legal advocate would file suit against the fertility clinic or a physician who knowingly contributed to their abuse–life in a multiple-child household headed by a single woman.”

Nadya Suleman’s saga, in other words, has highlighted a deep cognitive dissonance about whether children are “assets” or eternal expenditure, divine joy or devilish curse in a time of dwindling planetary resources. When I first heard of Suleman, my immediate thought was of Andrea and Rusty Yates–married, fundamentalist Christian believers in that ubiquitous story line about going forth and multiplying no matter what. After caring for and home-schooling five very young children with no assistance but prayer, and with accumulating signs of postpartum psychosis, Andrea Yates woke up one morning and drowned all her children with quiet efficiency.

And so the specter of psychotic breakdown haunts me when I think of the Suleman abode: one autistic child, plus 2-year-old twins, plus four other kids ages 3 to 7, plus eight newborns ranging from one to three pounds, plus a grandfather who has gone back to Iraq to earn more money for the family, plus a grandmother furious at the medical professionals who “assisted” her daughter, plus a surreally chipper Nadya, who despite the miserable odds remains enrolled as a graduate student in, of all things, pediatric counseling. This situation is undeniably sheer madness, but the public discussion seems fixated on the question of whether she can “afford” so many kids, as though if she was rich, this would be sane.

This past fall The New York Times Magazine ran a cover story by Alex Kuczynski, fashion writer and self-confessed “cosmetic surgery addict.” Her wish to have a child was framed by fierce determinism, the “natural outgrowth” of marriage to her husband–without whom she “would skip the child.” Kuczynski is married to a man whose “sperm had a track record”–six other children by two prior wives. She, the third bride and twenty years her husband’s junior, described herself as engaged in nothing less than a “battle for my fertility”; having a biological child was “necessary,” a “mad desire,” a “compulsion” and “proof” of the marital bond, without which she faced “wrecked hopes” and an “abyss of grief.” Indeed, to die “without having created a life is to die two deaths: the death of yourself and the death of the immense opportunity that is a child.” When she thinks she’s pregnant, she feels a “shiver of victorious accomplishment…. my own fecundity triumphant.” When she tells people she’s not, she feels “barren, decrepit, desexualized,” “branded with a scarlet ‘I’ for ‘Infertile,’” “the dried-up crone with a uterus full of twigs.”

Just because Kuczynski is married and wealthy does not make her less obsessive or more profound than Suleman. Kuczynski sounds like a sad, silly child mooning over “fertile but fit” stars like Halle Berry, Nicole Kidman, Salma Hayek and “John Edwards’s sometime mistress,” who all had babies in their 40s. Likewise, Suleman takes heart looking at Angelina Jolie. Suleman and Kuczynski represent disturbing emotional extremes. But that should not excuse the rest of us from examining the oppressive competitive natality that seems to have gripped us–the fantasies of “baby bumps” and breeding, always breeding, yet more of “our kind.” Our culture’s antifeminist backlash and its unrealistic aspirations have bewitched Kuczynski and Suleman, these two young women who are so addled and so suggestible, so endowed and yet so impoverished. All these years after the age of “liberation,” perhaps it is time to revisit the myths we still concoct about childless women’s worth.

Yesterday, the Gender and Sexuality Law Program kicked off its spring 2009 colloquium with the presentation and discussion of Professor Anna Marie Smith’s paper entitled “Reproductive Technology, Family Law, and the Post-welfare State: The California Same-Sex Parents’ Rights ‘Victories’ of 2005.“ Professor Smith’s article touches on several facets of parental rights and its intersection with political theory, the law, and same-sex relationships; however, we spent the bulk of the time discussing Smith’s illumination of some of the “unintended consequences” of the National Center for Lesbian Rights (NCLR)’s participation as amici in the Elisa B. case, and the impact those consequences might have on poverty law, family law, and LGBT and single mothers’ parental rights more broadly.

Here are the facts: In California, two lesbian women (Elisa and Emily) in a relationship each bore children via donor insemination. During this time, the women agreed that Emily would be the “stay at home” mother, and Elisa would be the family “breadwinner.” The two women separated after having three children (Elisa moved away, taking her child, while Emily stayed in California with twins); Elisa initially continued financially supporting the children, but after some time, stopped. Emily subsequently applied for California’s public assistance benefit for single mothers of “needy families,” otherwise known as TANF. TANF requires its beneficiaries to initiate proceedings with the state to identify absent second parents of their children to assist in the collection of support payments from him or her. Emily was the absent second parent, so the state went after her for child support, and NCLR filed amicus briefs on behalf of the state. When California won, and Elisa B. was required to pay child support to Emily under TANF, the decision was hailed as a victory for LGBT families everywhere.

Here’s the problem: The state of California brought this case against Elisa B, not Emily. Why? Because TANF requires its recipients to initiate proceedings to identify and go after their ex-partners for child support. This poses a particularly dangerous dilemma for recipients who have experienced domestic violence: get the benefits, or risk the repercussions of opening up contact with the partners who abused them. In fact, Smith points out that indeed, all TANF recipients are robbed of their autonomy to decide whether to contact their former partners at all, or at least, on their own terms, and not via the state.  

Sudhir Venkatesh, a sociologist and Director of the Center for Urban Research and Policy at Columbia University, gave insightful commentary, noting the social and cultural assumptions that all those involved in the litigation process inevitably make in the process of advancing case law. He also brought up the question of decision-making: when TANF recipients are faced with the difficult choice of whether to contact the child support payer in order to receive benefits, what goes into that decision-making process, and are there other ways to negotiate relationships with child support payers?

Other interesting points raised: (1) what about “vertical” family relationships, that is, parent-child relationships, and how does autonomy play into that relationship?  What if there is a conflict between protecting the autonomy of the “horizontal” family relationship to the detriment of the parent-child relationship? (2) Is there a legal consciousness story to be told here, one that centers on affirmative rights to a relationship between the social mother and child versus the responsibilities to which a social mother must adhere vis-a-vis her child after the relationship ends? and (3) To what extent are these cases about redistribution of benefits from one LGBT parent to another, or about recognition of a status relationship between the two?

Jeannie Chung

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

As politicians and pundits debate the need for and contents of an economic stimulus program early in the Obama Administration, one issue has gained less attention than it should, and the attention it has gotten is – to my mind – largely of the wrong kind. The issue is Gender. How should women’s interests figure in the decisions about who and what should get invested in as we try to jump start our economy? Hundreds of billions of dollars in new public spending will likely form a significant part of the new administration’s priorities – roads and bridges will finally be repaired, new schools built, broadband internet services will extend to rural and low income communities, and major investments will be made in green technology. Linda Hirshman, a well-know cultural feminist and frequent contributor to the Huffington Post was recently interviewed on the NewsHour where she said that the best way to include women in the stimulus package would be to include ample funding for health care and schools since that would mean nurses and teachers would be beneficiaries of the bounty – professions where women are over-represented. After all, the bailout money doled out by the Bush Administration has largely ended up in the suitpockets of men: regular bankers and investment bankers.

I shuddered when I heard Hirshman say this on “the TV machine,” as Rachel Maddow calls it. I care deeply about the opportunity to expand gender-based justice provided by an enormous increase in federal spending. But the solution to gender-bias in the federal bailout isn’t to reinforce other gender asymmetries in the wage labor market. Sure, schools and hospitals should get ample amounts of funding in the stimulus package, but not because women work there, rather because our schools and hospitals are crumbling.

The hard work we need to do RIGHT NOW is make it clear to the Obama Administration that a serious commitment to gender equality requires that they tie the funding of road construction, school rebuilding, development of green technologies – and even the financial services industry – to non-discrimination on the basis of sex and race, but also to data collection and reporting on who is getting the money. Who owns the companies that get stimulus funding, who gets hired by those companies, and what work they’re doing. Affirmative action has become a dirty word, but there are plenty of other means by which the work traditionally done by white men can be transformed into work that does not have a proper gender and racial identity. New apprenticeship programs for women and people of color who have been closed out of certain industries will be needed – particularly for those who are retooling themselves after having been laid off. Many of these industries are unionized, and this may mean taking on the unions – strong supporters of Obama’s presidential campaign.

Funding sectors in which women are traditionally well-represented, as urged by Hirshman, accomplishes an old fashioned “women’s rights” victory by sending the money to where the women are. Yet by ignoring the gender justice stakes in sectors where women aren’t, we risk leaving in place the deeper root causes that make pink ghettos recognizable in the first place – the idea of “women’s work” and “men’s work” based on sex-role stereotyping.

We all remember the Rosie the Riveters from World War II who did the men’s work while the men were overseas fighting fascism, but those jobs were “given” back to the men when they returned from the War – after all, those were “their” jobs. The current financial emergency gives us the opportunity to make a longer-lasting transformation of the wage-labor market.

When we get on the phone to the Obama people telling them to pay attention to this issue, guess who answers the phone? Larry Summers. He’s the guy in charge of Obama’s economic team working on the stimulus package. And you remember Larry Summers – he’s the fella who holds the view that boys are naturally better at math and science than girls.

We’ve got lots of work to do, don’t we?

Nazneen Mehta is a second-year law student at Columbia Law School and is writing a Note on the international market in surrogacy services – particularly between relatively affluent “intended parents” in the US and poor female surrogates in India. Her Note will examine the ways in which this market might better be regulated by law in order to protect the rights and interests of the surrogates in India. Her research has taken her to Mumbai, India over the winter break to better understand the conditions under which the surrogates are working. What follows are her initial reflections on this research:

Alex Kuczynski’s story, “Her Body, My Baby,” about her experience bonding with the woman who became her son’s surrogate mother portends the rise of what Noa Ben-Asher on this blog suggested are “new and surprising extra-legal familial structures.”

But, maybe not. In a largely obscure industry that is becoming increasingly transnational, Kuczynski’s story could be the outlier.

Surrogacy has quietly spread beyond national borders, creating a multi-million dollar global industry that joins together women like Kuczynski with poor women in developing nations. But unlike Kuczynski and her surrogate, Cathy Hilling (with whom she was on a first-name basis), the surrogates in these developing nations will never share tuna sandwiches or host backyard barbeques with the “intended parents.”

In fact, very few surrogates in developing nations will meet the parents for whom they are carrying a child. As a doctor at an international surrogacy clinic in Mumbai, India, related to me, the clinic discourages intended parents from meeting the woman the center has chosen to be the surrogate. The doctor explained that the women come from the ranks of India’s poor, and if they “see foreigners,” the women may try to get more money or resources out of the intended parents. There is no “wink and nod” custom, and the reality of class division lie exposed between the intended parents and the surrogate.

The selection process further removes intended parents from knowing the individual women who become their surrogates. Kuczynski pored over the profiles of potential surrogates, reading each woman’s personal story and employment demands. International surrogacy agreements, however, are largely facilitated by surrogacy clinics operating in developing nations. The clinics recruit a pool of poor women to become surrogates and then assign the women to intended parents. There are no personal stories about the women’s lives or ambitions to distinguish one from another; women need only pass the clinics’ health and psychological screening to become a surrogate. (The selection process implicates the issues of race and class discussed by Khiara Bridges on this blog, and suggests that her analysis of Black women in the U.S. could extend to poor women of color in developing nations).

I make these comparisons between international surrogacy and Kuczynski’s story not to push normative claims about either type of surrogacy agreement. Rather, I contrast the two models to bring international surrogacy into the discussion. And to suggest that in the battle between the legal frameworks mentioned by Ben-Asher—the surrogate as hired outsider vs. surrogate as extended family member—the former may be pulling ahead.