Bartlett Katharine T. - Gender Law and Policy

Gender Law
and Policy

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Library of Congress Cataloging-in-Publication Data

Names: Bartlett, Katharine T., author. | Rhode, Deborah L., author. | Grossman, Joanna L., author. | Brake, Deborah L., author.

Title: Gender law and policy / Katharine T. Bartlett, A. Kenneth Pye Professor Emerita of Law, Duke University School of Law; Deborah L. Rhode, Ernest W. McFarland Professor of Law Director, Stanford Center on the Legal Profession, Stanford University Law School; Joanna L. Grossman, Ellen K. Solender Endowed Chair in Women and the Law and Professor of Law, SMU Dedman School of Law; Deborah L. Brake, John E. Murray Faculty Scholar and Professor of Law, Associate Dean for Research and Faculty Development, University of Pittsburgh School of Law.

Description: Third edition. | New York : Wolters Kluwer, [2021] | Includes bibliographical references and index. | Summary: Undergraduate text on gender issues within the lawProvided by publisher.

Identifiers: LCCN 2020025644 | ISBN 9781543813739 (paperback) | ISBN 9781543823400 (ebook)

Subjects: LCSH: Sex discrimination against womenLaw and legislationUnited StatesCases. | WomenLegal status, laws, etc.United StatesCases. | Equality before the lawUnited StatesCases. | LCGFT: Casebooks (Law)

Classification: LCC KF4758 .B37 2021 | DDC 342.7308/78dc23

LC record available at https://lccn.loc.gov/2020025644

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To our students

Summary of Contents

Contents

Preface

This is a book about gender, and what law has to do with it. It touches virtually every area of life, and issues that deeply affect everyone, including jobs, family, education, pay equity, reproductive rights, military service, sexual identity, sexual violence, and social justice. The book both examines what the law is, and helps you think more deeply about what it should be. It could also stimulate your interest in pursuing a career in law, policy, or public service. But whatever work you choose, these readings can help you think about the life you want to lead and the legal and social changes that will make it possible.

The book has two goals. One is to survey the most significant legal and policy issues relating to gender. For each of the many topics covered, the book defines the significant issues, identifies the relevant law (often through excerpts of court cases), and provides commentary by leading academics and policymakers. For each section, notes provide background, reading questions identify key issues, definition boxes explain legal terms, and problems (Putting Theory into Practice) challenge you to apply legal principles to concrete, often real-life, situations.

The other goal of the book is to identify and compare different theoretical frameworks that will help you to think systematically (as opposed to impulsively) about gender issues. These frameworks organize the book and enable you to identify and rethink the factual and normative assumptions of your own views. Each framework offers a different handle on the relationship between law and gender. The formal equality perspective assumes the basic sameness of men and women and mandates that both sexes be treated identically, whatever the outcome. The substantive equality framework assumes some significant differences between men and women and urges accommodations (usually for women) in order to eliminate the negative consequences of those differences. Nonsubordination theory assumes that law is structured to make womens subordination look natural and inevitable and seeks to expose and challenge this subordination. Difference theory looks at womens differences from men not so much as disadvantages to be eliminated, but as models for a more just and caring society. The autonomy framework explores legal issues from the standpoint of how to provide women better, and freer, choices. Each of these frameworks intersects with other theoriesintersectionality, gender queer theory, and masculinities studies. These adjacent frameworks are explored along with a preview of each of the five frameworks in the books introduction.

These theoretical perspectives are not mutually exclusive, nor are they total theories that are intended to answer every doctrinal and policy question. Rather, they represent major lenses through which to view the relationship between law and gender. We believe that each theoretical framework has significant value and limitations. The approach of this book works best if readers attempt to be both open to, and critical of, each perspective.

The book is drawn from a longer and somewhat more technical textbook designed for law school courses on law and gender: Gender and Law: Theory, Doctrine, Commentary, now in its eighth edition. Its intended use is for undergraduate courses in gender, law, and public policy. Most of the sources in the book have been heavily edited. Additions to, deletions from, and other substantive alterations to quoted materials are indicated by brackets and ellipses; footnotes and citations are generally deleted without such designations. Where footnotes are retained, the original numbers are used. Paragraph breaks and the order of paragraphs are occasionally modified to make edited excerpts coherent.

Our approach to teaching law and gender is committed to multiple ways of looking at an issue. For this reason, the book is an ongoing unraveling and reweaving of interconnected designs, rather than a straight-seamed assembly of a single, finished fabric. This approach enables you to reconsider problems examined earlier in the book in light of perspectives presented later, and to keep your own mind open to views that may affect your previous judgments.