UCLA Journal of Gender and Law

This Article reviews research and theory in the field of gender in the legal profession using a framework developed by feminist theorist Barbara Risman.  Risman asserts that gender is a social structure, “an entity in and of itself,” which operates on the individual, interactional, and institutional levels.  Using Risman’s tripartite framework, I explore two prominent questions in the gender and legal professions literature: (1) Why do men and women advance differently in their careers? and (2) Are women more or less satisfied with their legal careers than men?  In doing so, I demonstrate that the vast majority of theories of gender inequality in the legal profession, and the research methods undertaken to test them, focus on individual and institutional analysis to the exclusion of interactional analysis.

I further highlight a lack of research focusing on the ways in which gender is embedded in interactions between female lawyers and those who shape their career choices: partners, friends, mentors, and colleagues.  I argue that existing research reifies Big Law partnership by using such positions as the measuring stick against which all other legal positions are valued.  I further argue that current studies unintentionally perpetuate gender stereotypes by conceiving of gender inequality as a women-only issue.  Work-life balance is conflated with having children such that the notion of having a life outside of work is itself now gendered.  I call for a renewed study of the interaction between gender and other intersectional identities like race and class, given the unique set of challenges faced by female attorneys who are also racial minorities and/or live on less than a Big Law salary.  I further offer policy recommendations, including government- or firm-sponsored childcare and gender-related legal education for law students and lawyers.

Lawsuits about groom-to-bride marriage payments are arriving in Chinese courts, challenging traditional ideas about marriage formation.  Through the lens of case files, I examine the dissolution of marriages (or quasimarital relationships) formed by marriage payment agreements and analyze the anticommodification views expressed by feminists and legal scholars.  In these cases, judges wrestle with two competing considerations: their own antimarriage payment and pro-groom views on one hand and the litigants’ economic conception of marriage on the other.  The former urges judges to rule for the grooms, and the latter for the brides.  In balancing these two considerations, judges generally order a partial or full repayment of the payment when the relationship dissolves.  I also examine feminist concerns of voluntariness and fairness in the commodification of sexuality.  The current theoretical and judicial frameworks do not account for the divergent power dynamics in individual cases; as a result, the case rulings do not respond appropriately to brides and grooms with differing degrees of agency.  These blind spots may have unintended consequences, including inflating prices and reinforcing gender-based asymmetries.  In this Article, I argue that judges should rely on economic analysis rather than moral judgment to better account for the actual dynamics of marriage payment arrangements.  Framing my analysis is a transactional conception of marriage and an economic approach to family, both of which have the potential to further our understanding of marriage and to advance gender equality.

The last decade has been monumental in the fight for transgender rights, including a growing recognition of transgender identity.  This shift has also created space for those with nuanced gender identities—such as those who are nonbinary—to join the conversation.  Individuals who identify as nonbinary do not identify as “male” or “female,” but rather as both, neither, or something altogether separate.  Nonbinary people use often use alternative pronouns, such as “they/them/theirs,” to refer to themselves.  While these pronouns are increasingly being accepted into the lexicon of American English, the legal field is far behind in its acceptance and use of nonbinary pronouns.

Although the law has made great strides in recognizing nonbinary identity within the last five years, the legal field cannot support the progress of transgender rights until regularly utilizes nonbinary pronouns, such as “they/them/theirs,” in law school classrooms, legal academic writing, and legal practice.  Furthermore, the legal field’s failure to recognize such pronouns is a form of oppressive silencing that serves to uphold a false gender binary while also delegitimizing nonbinary identity.  Critical Race Theory provides a generalizable framework for better understanding this silencing so that transgender rights activists and scholars can effectively resist it.  Specifically, the scholars behind Critical Race Theory had to break the oppressive silencing forced upon them by white academia in order for the ideas, theories, writing, and scholarship of legal scholars of color to be respected in legal academia.  As such, transgender rights activists and scholars can benefit from studying and employing the tactics they used to challenge their silencing.

May 14, 2018 is among the most significant days in modern American sports history.  No one earned a gold medal or played a championship game.  There was no World Cup or National Series title on the line.  Instead, with just a keystroke, the U.S. Supreme Court held the Professional and Amateur Sports Protection Act (PASPA) unconstitutional, thereby legalizing sports betting across the country.  In the two years following the decision, dozens of states have established sports betting operations.  For professional sports athletes and their agents, this new era brings with it questions of how state laws regarding the right of publicity will interact with laws governing sports betting operations.  Complicating this question is well-established precedent governing fantasy sports and the online platforms that profit off of the name, image, and likeness of professional athletes.  Against this backdrop, female professional athletes continue to earn significantly lower salaries than their male counterparts.  This Article examines the gender wage gap in professional soccer and basketball, and explains the significance and history of PASPA.  It then reviews the case law regarding professional athletes and their right of publicity claims.  It concludes by suggesting that some female professional athletes may narrow the gender wage gap by asserting their right of publicity on sports-betting platforms.

Nearly a century ago, the Supreme Court sanctioned compulsory sterilization in Buck v. Bell, echoing eugenicists and reasoning that “[i]t is better for all the world . . . [if] society can prevent those who are manifestly unfit from continuing their kind.”  In addition to this eugenics-based rationale, compulsory sterilization in the early twentieth century also sought to punish and stigmatize LGBTQ persons, who were called “sexual deviants.”  Today, at least fourteen states and one territory continue to—in effect—involuntarily sterilize transgender individuals.  In these states, transgender individuals must undergo sex-reassignment surgery before they can correct the gender on their birth certificates.  This Article argues that like many of America’s early sterilization laws targeting LGBTQ individuals, today’s surgical requirement laws seek to advance three forms of animus that are separate from eugenics.  First, these laws seek to deny transgenderism.  Second, these laws seek to punish or stigmatize perceived deviance.  Third, the laws impose a view of heteronormative sexual ethics, which seeks to define what sexual conduct is tolerable in society.  As transgender rights advocates mount a new wave of legal challenges, they should challenge laws requiring surgery to change one’s gender on a government-issued birth certificate.  Such laws violate the fundamental right of bodily autonomy to choose and refuse medical treatment because they are not narrowly tailored to a compelling state interest.  Instead, surgical requirement laws advance animus against transgender persons.  These laws also echo the historical animus against LGBTQ individuals that motivated compulsory sterilization during the Buck era in the early twentieth century.  Thus, litigation challenging surgical requirement laws presents an opportunity for the Court to definitively overturn Buck.