The Duke Journal of Gender Law & Policy is a student-edited interdisciplinary publication of Duke Law School devoted to discussions of gender, sexuality, race, and class issues in the context of law and public policy. Published since 1994, DJGLP aims to foster debate and encourage scholarship outside conventional boundaries.

News

The Globethics.net library contains articles of Duke Journal of Gender Law & Policy as of vol. 1 (1994) to current.

Recent Submissions

  • Consensual Sex Crimes in the Armed Forces: A Primer for the Uninformed

    Cox, Walter T., III (Duke University School of Law, 2007-05-01)
    Though not specifically mentioned in this chapter, all disorders and neglects to the prejudice of good order and discipline in the armed forces, all conduct of a nature to bring discredit upon the armed forces, and crimes and offenses not capital, of which persons subject to this chapter may be guilty, . . . shall be punished at the discretion of that court.5 To implement this congressionally-enacted prohibition, the President, as Commander-in-Chief of the Armed Forces, has deemed by executive order that a number of acts are punishable under this Article.
  • Military Sex Scandals from Tailhook to the Present: The Cure Can Be Worse than the Disease

    Browne, Kingsley R. (Duke University School of Law, 2007-05-01)
    On Friday and Saturday of the convention, "hospitality suites" hosted by various flight squadrons were the scene of what can accurately be described as debauchery.6 The activities included performances by female strippers, sexual interaction with these strippers,7 drinking "belly/navel shots,"8 which entails men drinking alcohol out of women's navels, "butt biting"9 and leg shaving,10 which are what they sound like, and "ball walking," which consisted of fully clothed male officers walking around with their genitals exposed.11 The activities spread into the third-floor hall linking the suites. A "gauntlet" (or "gantlet")-a double line of male aviators, one on each side of the hallway-was set up, and those women who had the fortune or misfortune, depending upon their preferences, of finding themselves in the hallway were fondled and groped as they walked past the men.12 One of those women was Paula Coughlin, an admiral's aide who claimed that she had been victimized in the gauntlet.13 Depending upon whose version of the story is believed, she reported this activity to her boss within a day or a couple of weeks, and the Chief of Naval Aviation learned of the event sometime shortly after that.14 Although the convention took place in early September, it did not make the news until late October,15 at about the same time that the nation was transfixed by allegations of sexual harassment by Anita Hill against Supreme Court nominee Clarence Thomas.16 A. The Reaction The reaction of the Navy and Congress to the Tailhook mess converted an out-of-control party into a career-killer for hundreds of Navy personnel and a morale-killer for thousands of others.
  • Cultural Differences in Perceptions of and Responses to Sexual Harassment

    Zimbroff, Jennifer (Duke University School of Law, 2007-05-01)
    14 To be considered pervasive, the conduct must be repeated, continuous and concerted, and not merely an isolated incident or occasional occurrence.15 Moreover, to sustain a hostile environment claim, the conduct must have been unwelcome-that is, the conduct was neither invited nor incited by the complaining party-and the complainant must have clearly indicated that the conduct was unwelcome.16 Hostile environment sexual harassment encompasses a wide range of behaviors including, inter alia, displays of sexually-explicit materials, sexuallycharged or demeaning jokes, derogatory names or epithets, physical advances, repetitive requests for dates, repeated comments on physical appearance, and sexually-charged body language or facial expressions.17 The terms and conditions of employment need not have been tangibly affected, even if the offending conduct had the purpose of unreasonably interfering with the victim's work performance.18 To be actionable, the conduct at issue must have been tinged with offensive sexual content and must have demonstrated discrimination based on sex.19 The range of circumstances considered includes the frequency, severity, physical nature, associated humiliation, and job interference inherent in the harassing behaviors.20 As a precondition to an actionable harassment claim, would-be plaintiffs must first utilize any procedures established by the employer for prevention and correction of sexual harassment.21 The concept of hostile environment is both complicated and imprecise, leaving many issues for the courts to resolve.
  • Women in the Sphere of Masculinity: The Double-Edged Sword of Women’s Integration in the Military

    Rimalt, Noya (Duke University School of Law, 2007-05-01)
    Too many women together are not a good thing anywhere, especially not in the military.2 Noa is one of numerous women who have managed to cross traditional gender lines in the Israeli military in the last decade, assigned to positions that typically had been reserved for men.3 The inclusion of those women in traditional masculine spheres was the result of legal changes initiated by women and feminist groups in the 1990s.4 Those changes were designed to promote greater gender equality in the military by opening prestigious combat units to women soldiers.5 Hence, Noa and all other women whose military experiences were documented in the film Company Jasmine were all facilitators of this vision of gender equality. For some women, having the equal opportunity to serve as their male counterparts proves to be a meaningful experience that raises their confidence and allows for individual achievements in areas traditionally inaccessible to women.11 This article focuses on these seemingly contradictory findings regarding women's growing integration in the military, using the Israeli experience of gender integration in the IDF as a case study for exploring the ongoing feminist debate on women's military service.
  • What’s the Constitution Got To Do With It? Regulating Marriage in Pakistan

    Yefet, Karin Carmit (Duke University School of Law, 2009-08-01)
    [...] the supreme law of the land seems to embody a blatant contradiction. The Pakistani Constitution extends protection to an impressive catalog of fundamental rights, placing Pakistan in line with some of the most western-minded constitutional regimes in the world.3 At the same time, in contrast to the American-style constitutional commitment to separate church and state,4 the Pakistani regime is constitutionally committed to integrate the two, in the sense that all laws must conform to the injunctions of Islam as a condition of their constitutional validity.5 So the same Constitution that protects western fundamental rights also elevates Islamic law, a legal tradition usually associated with the loss of rights.6 This raises the question of how a legal system is expected to adequately function when its defining document seems inherently flawed, and how its judges are meant to carry out its conflicting mandates faithfully, especially when dealing with the delicate regulation of marriage.
  • Abortion Post-Glucksberg and Post-Gonzales: Applying an Analysis That Demands Equality for Women Under the Law

    Nagle, Mary Kathryn (Duke University School of Law, 2009-08-01)
    Because the government has historically enacted laws criminalizing abortion to preserve traditional stereotypes regarding a woman's domestic and subordinate position in society,22 abortion regulations necessitate an Equal Protection Clause analysis. [...] this article will examine first how Gonzales and Glucksberg forecast Roe's now inevitable demise, and accordingly, why abortion regulations must now be evaluated under an Equal Protection Clause analysis- in place of the crumbling Due Process Clause framework.23 Finally, this article will explain how and why the Partial Birth Abortion Act of 2003 violates the Equal Protection Clause of the Fourteenth Amendment.
  • Sexy Dressing Revisited: Does Target Dress Play a Part in Sexual Harassment Cases?

    Beiner, Theresa M. (Duke University School of Law, 2007-01-01)
    Feminists have been debating what constitutes appropriate female attire since the beginning of the feminist movement in the United States.2 Since the early 1990s, when Naomi Wolf's book The Beauty Myth3 was released, feminists, law professors, and popular culture critics have tried to understand women's dress in the present day. In spite of years of criticism of these beliefs, the bias this injects into rape trials, and even with the enactment of rape shield laws,6 this evidence still sneaks into rape cases.7 With this in mind, one would expect a similar phenomenon to occur in sexual harassment cases. 8 As the Supreme Court stated in Meritor Savings Bank v. Vinson, no per se rule exists barring the admissibility of evidence of a victim's provocative dress and publicly expressed sexual fantasies.9 Meritor opened the door to the admission of such evidence in the sexual harassment context.
  • Constructing the Co-Ed Military

    Donnelly, Elaine (Duke University School of Law, 2007-05-01)
    During a pre-launch test of the Apollo One spacecraft,1 an electrical spark ignited the pure-oxygen atmosphere inside the cramped capsule, killing astronauts Virgil Grissom, Edward White, and Roger Chafee.2 Critics demanded to know why the mechanical and electrical engineers of the National Aeronautic and Space Administration (NASA) failed to recognize the inherent dangers of operating in a pure-oxygen environment. To ensure that the intent of Congress is carried out with regard to homosexuals in the military, the Secretary of Defense should: * Improve understanding and enforcement of the law by eliminating the Clinton Administration's enforcement regulations, known as "Don't Ask, Don't Tell," which are inconsistent with the 1993 law that Congress actually passed, and (better yet) restore "the question" about homosexuality that used to be on induction forms prior to January 1993. * Oppose any legislative attempt to repeal the 1993 homosexual conduct law in Congress. * Ensure that the 1993 statute is vigorously defended every time it is challenged in the federal courts. * Prepare and distribute accurate instructional materials for potential recruits, recruiters, and all military personnel that include the text and legislative history of the 1993 law. * Remind the media that everyone can serve their country in some way, but not everyone is eligible to be in the military. 2.
  • Branded: Corporate Image, Sexual Stereotyping, and the New Face of Capitalism

    Avery, Dianne; Crain, Marion (Duke University School of Law, 2007-01-01)
    In the context of unionized workforces covered by collective bargaining agreements, companies have-at most-been required to demonstrate a reasonable relationship between the grooming code and the business's effort to project a corporate image that it believes will result in a larger market share.5 In a small number of cases, sexualized branding that exposes workers to sexual harassment or is predicated upon sexual stereotypes not essential to performance of the job has been curtailed by the antidiscrimination mandate of Title VII.6 However, challenges under Title VII have been effective only where corporate branding is at odds with community norms; where the branding is consistent with community norms that encode sexual stereotypes, customer preferences and community norms become the business justification for branding.
  • A Right to Choose?: Sex Selection in the International Context

    Bumgarner, Ashley (Duke University School of Law, 2007-05-01)
    While there is some debate among doctors, ethicists, and the general public about the level of medical necessity that should justify a sex-selection procedure, most accept that sex selection for medical reasons is beyond ethical reproach, and in some situations, should even be encouraged.9 However, elective, non-medical sex-selection, which is often performed for social or financial reasons, is the subject greater scrutiny and impassioned ethical debate.10 Currently, doctors and geneticists are able to diagnose more than five hundred separate medical conditions in a developing fetus.11 Among these conditions are devastating genetic diseases such as hemophilia, Down syndrome, cystic fibrosis, Huntington's disease,12 and Hunter syndrome.
  • The BFOQ Defense: Title VII’s Concession to Gender Discrimination

    Manley, Katie (Duke University School of Law, 2009-01-01)
    Should the BFOQ exception still exist? Because permitting discrimination under Title VII seems fundamentally contrary to the anti-discrimination purpose of the statute, this article questions whether the BFOQ defense is consistent with the aims of Title VII or whether, in actuality, the defense undermines the Act's effectiveness by providing a loophole for employers to participate in the discriminatory practices Title VII seeks to forbid.
  • Lessons from Equal Opportunity Harasser Doctrine: Challenging Sex-Specific Appearance and Dress Codes

    Zalesne, Deborah (Duke University School of Law, 2007-01-01)
    Importing interpretations of Title VII developed from the equal opportunity harasser doctrine to dress code cases-which also fall under the purview of Title VII-would allow courts to focus on the sex-based underpinnings of employer dress codes that construct women as generally inferior to men and the harm that dress codes present to individuals who deviate from accepted gender norms, without requiring comparative evidence of unequal burdens to both sexes.
  • Gender Performance Over Job Performance: Body Art Work Rules and the Continuing Subordination of the Feminine

    Gillan, Jennifer L.; Ponte, Lucille M. (Duke University School of Law, 2007-01-01)
  • Future Children as Property

    Dillard, Carter (Duke University School of Law, 2010-01-01)
  • Legal Impediments to Service: Women in the Military and the Rule of Law

    Murnane, Linda Strite (Duke University School of Law, 2007-05-01)
    Some of those who served did so by disguising themselves as men.6 A number of women had served as spies, as was the case of Rose O'Neal Greenhow, who was arrested and imprisoned for supplying the Confederate Army with information, and Pauline Cushman, who was sentenced to be executed as a Union spy during the War Between the States.7 The first woman to receive the Congressional Medal of Honor, Dr. Mary Walker, provided her services as a doctor free of charge to Union forces in Virginia and Tennessee.8 She had asked the Union Army to hire her as a doctor, but it refused.9 Despite its refusal to hire her, Dr. Walker continued to provide medical services to Union soldiers.10 Eventually, she was captured by Confederate soldiers.11 After her release from Confederate prison as part of a prisoner exchange, she was given an official position of "Acting Assistant Surgeon," the first woman to be given such a title.12 Dr. Walker received the Congressional Medal of Honor after the war.13 In 1917, however, the U.S. Congress attempted to remove the honor from her, stating that only those who fought in combat were entitled to the award.14 When the Congress decided that the Medal had been awarded in error, Walker refused to return the medal.15 Even after her death, Dr Walker's family continued to battle to resolve her status as a Medal of Honor recipient. [...] women were not afforded the right to vote in any state in any election before achieving the right to vote in school board elections in Kentucky in 1838.18 Passage of the Nineteenth Amendment in 1920 gave women the right to vote in national elections across the country.19 Similarly, women were not entitled to administer estates, own property, or enter into contract in their personal capacity.\n Perhaps it is unsurprising that, more than forty years after the Civil Rights Act of 1964, members of the legislative branch, as well as those in positions to engender policy for and within the U.S. military, continue to limit opportunities for women in fields in which they have a proven competence.
  • Military Values in Law

    Mazur, Diane H. (Duke University School of Law, 2007-05-01)
    Congress, for example, takes inappropriate advantage of the tremendous deference given by courts to its constitutional powers to raise and support Armies, to provide and maintain a Navy, and to make Rules for the Government and Regulation of the land and naval Forces.\n In a court-martial involving a military defendant and a civilian victim of sexual assault, application of the psychotherapist-patient privilege raises no difficult issues related to professional military values. When both the victim and the defendant are members of the military, however, the victim's assertion of privilege is at least potentially inconsistent with the victim's professional obligation to place the military's institutional need to discipline misconduct undermining military readiness above an individual desire not to reveal communications concerning the criminal act.
  • Gender Essentialism and American Law: Why and How to Sever the Connection

    Bell, Melina Constantine (Duke University School of Law, 2016-04-01)
    American law presumes that all persons are born either female or male, and rests a surprising number of legal entitlements on this presumption. Persons’ legal rights to express their identity at work, to use public accommodations, and to retain legal parenthood status with respect to their children may all depend on whether they are female or male. Yet we, as individuals, generally have no choice regarding whether we are legally designated female or male, just as people had no choice as to whether they were designated “colored” or “white” under past racial discrimination schemes. The American legal system plays a significant role in the construction, maintenance, and coercive enforcement of the binary gender system that requires people to conform their identities in distorting ways to be included politically. By sustaining the gender system, legal institutions unnecessarily undermine human well-being, and unjustly and disrespectfully constrain individual liberty. The United States and state governments should re-examine laws that use sex or gender as a category by adapting the Law Commission of Canada’s methodology in Beyond Conjugality. In this fashion, American law can begin to move gradually away from the creation, maintenance, and enforcement of the gender system.
  • Journal Staff

    Duke University School of Law, 2016-04-01
  • Legislating for the Provision of Comprehensive Substance Abuse Treatment Programs for Pregnant and Mothering Women

    Steverson, Janet W.; Rieckman, Traci, PhD (Duke University School of Law, 2009-08-01)
    Additionally, in writing this article it became clear that, although the data collection in this area has improved over the past twenty years, more specific data is needed in order to have a clearer picture of the exact nature of the unmet need so that the states can better address it. [...] although the authors were able to obtain enough information to provide some suggestions to the states for providing treatment programs for pregnant and mothering women, work in the area is severely limited by the lack of accessible data.

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