Gender and Disaster

(Delighted to welcome back alumna Fionnuala Ni Aoláin, who contributes this guest post)

Given recent events in Japan it seems like an opportune moment to reflect on the gendered dimensions of natural and other kinds of disasters. The reflections here are part of a more sustained analysis I make in an article forthcoming in the Michigan Journal of Gender and Law entitled "Women, Vulnerability and Humanitarian Emergencies."
The catastrophic dimensions of humanitarian emergencies are increasingly understood and more visible to states and international institutions. There is also some recognition of the gendered dimensions of humanitarian emergencies in policy and institutional contexts.
It is generally acknowledged that women are overrepresented in the refugee and internally displaced communities that typically result from many humanitarian crises. Women bear acute care responsibilities in most societies, and also disproportionately bear familial and communal care responsibilities in communities affected by disaster, war and natural emergencies. Women, given their disparate social and legal status in many jurisdictions, may have less access to capital, social goods and other legal means to protect themselves when crises arise. While tacit acknowledgement of this reality increasingly permeates academic and political discourses, the depth of the descriptive often fails to capture and fully grasp the extent of gender harms and gender insecurity.
Moreover, as experts and policymakers calculate how best national and international communities should respond to such emergencies, women are frequently substantively and procedurally sidelined. This follows from the dual effects of a dearth of women decisionmakers in the relevant high-level fora and the failure to meaningfully imagine and include solutions to the particular issues affecting women in communities emerging from various emergencies. Disaster-related research suffers from considerable bias, revealing an asymmetrical distribution of gender themes, an absence of data on women’s lives and a male bias in identifying the channels from which information is sought.
The recent events in Japan offer us further opportunity to reflect on the intersection of women’s experiences with situations of humanitarian crisis. My goal is to give greater traction to a feminist analysis of women’s experiences in situations of extremity.
In particular, I argue that in order to fully understand the context of women’s specific vulnerabilities, we have to widen and deepen the frame of investigation. In short, we need to take account of pre-existing conditions. We must start by contextualizing the ordinary experiences shaping women’s lives, which form the bedrock upon which a specific crisis is then foisted. The specificity of vulnerabilities subsequently identified in the moment of crisis can only be completely understood and fully addressed by reference to the backdrop. But, accepting the reality of such situated vulnerability does not take us far enough. Institutionalizing helplessness and propagating its inevitability continues to perpetuate a conceptual framework that fails to address the underlying causes of women vulnerability in situations of extremity. This requires a more nuanced approach, seeing compounded vulnerabilities for women in which prior discrimination, exclusion and social marginalization interplay with the specific harms and vulnerabilities foisted on women in situations of crisis. These two elements [the prior and the present] are in constant interplay. Moreover unless experts accept the predictability of such crises their planning will suffer from obvious, gender-biased defects.
By extending and reframing our understanding of why vulnerability is pronounced for women we may both expose and address the limits of current international legal obligations in addressing women’s harms and needs in the context of humanitarian crises. We do so by returning to basics, addressing the persistent social, economic and political discriminations that are routine for most women in most societies, most of the time.

(photos from post-tsunami Japan (c) 2011 Associated Press, available in slide show here)

On March 4

On this day in ...
... 1891 (120 years ago today), a daughter, Lois, was born in Brooklyn to a surgeon and his wife. After earning a college degree in fine arts, she worked at a YMCA, taught school, and, after marriage to a World War I soldier named Bill Wilson, as an occupational therapist. Lois Wilson (right) miscarried a number of pregnancies during what would be a childless marriage. (photo credit) Her husband drank -- until, that is, as Bill W., he cofounded Alcoholics Anonymous. Meanwhile she -- Lois W. -- founded Al-Anon, a support group for relatives of alcoholics. She died in 1988 -- 17 years after her husband -- at age 97.

(Prior March 4 posts are here, here, here, and here.)

Tearing Apart Immigrant Families

As many of us prepare to reunite with our families over the holidays, the Women's Refugee Commission has released a new report, Torn Apart by Immigration Enforcement: Parental Rights and Immigration Detention, that describes the horrific consequences of the interaction of the immigration enforcement and child welfare systems in the United States.
While hard data are difficult to come by, there are at least three million children living in mixed families in the United States -- that is, families with a US citizen child and an undocumented parent. Between 1998 and 2007, over 100,000 non-citizen parents of US citizen children were deported. For some, this results in painful decisions about whether to leave the child in the US or bring the child with them. But those are the lucky families; many parents do not ever even get this choice. In the worst cases, undocumented immigrants' parental rights are terminated without their knowledge.
The report breaks down the problem into several stages. To start, when U.S. Immigration and Customs Enforcement (ICE) apprehend undocumented immigrants, their protocols are insufficient to identify parents and prioritize them for release. Indeed, the guidance for agents who encounter juveniles during fugitive operations directs officers to contact child welfare services, which can complicate parents rights. In any case, there are no procedures to ensure that parents can make care arrangements for their children before they are detained.
Once undocumented parents are detained, it becomes extremely difficult to communicate with their children and the child welfare system due to limitations on telephone access and frequent distant transfers of immigration detainees. Not only does this pose serious obstacles to ensuring safe care for immigrants' children, it may contribute directly to termination of parental rights. For example, the child welfare system's family reunification plan may require regular phone calls and contact visits that are all but impossible for detained parents. Detained parents are also often unable to participate in family court proceedings, either because child welfare services cannot locate them so they do not receive notice of the hearing or because they are unable to be present at the hearing.
Finally, when undocumented parents are deported, the dearth of information provided by ICE about the timing of deportation can make reunification very difficult. Parents are often notified of their deportation at the very last minute -- too late to make travel arrangements for their children -- or ICE changes travel plans after parents have already purchased expensive, nonrefundable tickets for their children to accompany them. This and the other failures of coordination between immigration and child welfare systems described above result in the long-term and in some cases permanent separation of families, inflicting serious psychological trauma on the citizen children of undocumented immigrants.

(Hat tip to my student, Jessica Jones, who worked on the Women's Refugee Commission report this summer and is currently writing a research paper on the interaction of the child welfare and immigration enforcement systems under my supervision.)

On December 7

On this day in ...
... 1970 (40 years ago today), at Canada's House of Commons in Ottawa, the nearly 500-page Report of the Royal Commission on the Status of Women in Canada was presented. The 167 recommendations in the report (left) -- on, for example, maternity leave, contraception, family law, child care, and pensions -- "were based on fundamental principles which assumed that equality of opportunity for Canadian men and women was possible, desirable and ethically necessary." (photo credit) Many, but not all, of the recommendations eventually would be implemented.


(Prior December 7 posts are here, here, and here.)

On November 2

On this day in ...
... 1945 (65 years ago today), fewer than 6 months after World War II ended in Europe, and a little over a year after the Allies liberated Paris from the Nazis, a program for the protection of mothers and infants was established in France. A key component of la Protection maternelle et infantile, better known by its acronym PMI, was distribution of contraceptive pills. Administered through France's public service (logo above left), PMI today includes an array of services -- medical, midwifery, and social -- to pregnant women, to mothers, and to their children.

(Prior November 2 posts are here, here, and here.)

The Asylum Law Round-Up

In the past two weeks, two federal courts of appeals have weighed in on important asylum issues, yet again demonstrating the poor quality of decision-making at the immigration courts and the Board of Immigration Appeals (BIA) and the importance of access to judicial review for asylum seekers.

Last Monday, in Todorovic v. Attorney General, the Eleventh Circuit vacated and remanded an immigration judge's decision denying an asylum claim because he did not believe that the asylum seeker was gay. As the Court noted, the immigration judge "relied impermissibly on stereotypes about homosexuals" to find that the applicant was not a credible witness.
The applicant, Todorovic, described a litany of abuses, from rape to severe beatings, that had been perpetrated upon him by various state and non-state actors in Serbia and provided ample corroboration of his claims. He further explained that these instances of persecution occurred either because the perpetrators knew he was gay or because he was in a gay bar or with his boyfriend, a gay rights activist. Yet the immigration judge held:

The Court studied the demeanor of this individual very carefully throughout his testimony in the Court today, and this gentleman does not appear to be overtly gay . . . since he bears no effeminate traits or any other trait that would mark him as a homosexual.

Of even greater concern, based on the record described above, the Board of Immigration Appeals affirmed the immigration judge's determination that Todorovic was not a credible witness. Even under the highly deferential substantial evidence test, the Eleventh Circuit could not support this determination. While Todorovic can celebrate this outcome, it was disturbing to note that this was the fourth court of appeals decision in the past four years to overturn an immigration judge's credibility findings because they were based on stereotypes about gays. This reveals a significant failure of training in the immigration courts and of effective review at the BIA.
On Wednesday, in Cheng v. Attorney General, the Third Circuit remanded to the BIA the case of a young Chinese woman who claimed persecution based on her opposition to China's coercive population control policies. Cheng became pregnant by her boyfriend at the age of nineteen; though they wanted to marry, their village forbade women from marrying before the age of twenty-three. When town officials discovered her pregnancy, they tried to force her to have an abortion. Cheng fled, and when the officials learned she had given birth elsewhere, they confiscated her family's farm and truck, on which Cheng's family depended to earn a living. The town government ordered that Cheng and her boyfriend be sterilized, and threatened to take her baby from her and detain her boyfriend for months if she did not cooperate. Under this pressure, Cheng agreed to have an IUD inserted, which was particularly painful, and was forced to submit to gynecological exams every three months to verify its presence (and was assessed significant fines when she was unable to appear for these exams). Because she had two more children in the United States, Cheng feared sterilization upon return to China.
The immigration judge, finding Cheng credible, initially granted her claim, but then the BIA vacated the decision and remanded it for further proceedings in light of their recent decisions on China's population control policies. The BIA concluded that mandatory IUD insertion alone does not render an applicant eligible for asylum, but failed to address Cheng's resistance to the IUD and the harms that resulted. The immigration judge on remand denied the asylum claim, and on Cheng's second appeal, the BIA affirmed. (credit for photo at left).
Again, even applying the substantial evidence standard of review, the Third Circuit was compelled to disagree. The Court laid out the history of the coercive population control provisions of U.S. asylum law. In 1989, the BIA decided that China's family planning policies, even where they resulted in forced sterilizations, could not be considered persecution. Congress disagreed, and in 1996, expanded the definition of refugee to include those who suffered forced abortion, forced sterilization, or persecution for resistance to a coercive population control law. In 2008, the BIA decided that forcible insertion of an IUD, though "intrusive", does not rise to the level of persecution without aggravating circumstances.
Though it was disappointing that the Third Circuit did not dismantle this standard, the court sidestepped it by holding that the aggregate mistreatment suffered by Cheng constituted persecution on account of her resistance to China's population control policies. Again, the case presents a chilling reminder of the limitations of review by the BIA and the administrative asylum process. What has become of the Chengs and Todorovics of the world who were not able to pursue their asylum appeals into the federal courts?

Go On! State Responsibility & Intimate Violence

(Go On! is an occasional item on symposia and other events of interest)
Our readers in the United Kingdom and environs might be interested in the following event, at London's Chatham House, on international law and intimate violence:
The Principles of State Responsibility and Systemic Intimate Violence, Wednesday, 22 September 2010, 17:00 to 18:30.
Featuring:
► Professor Bonita Meyersfeld, University of the Witwatersrand, South Africa, School of Law and Head of the law school's Gender, Centre for Applied Legal Studies, who will: argue that systemic intimate violence is an appropriate concern for international law; survey important recent legal developments at the UN, European, inter-American, and Pan-African levels; and discuss her new book on this subject, Domestic Violence and International Law (2010).
► Gauri van Gulik (left), Women's Rights Division, Human Rights Watch, who will respond from the perspective of a practitioner working on these issues.
To register, e-mail amartin@chathamhouse.org.uk, stating your name and professional affiliation. Members should include their membership number.

All in the Family?

Last month, the Inter-American Commission on Human Rights issued a groundbreaking decision finding that some aspects of U.S. immigration law violate the American Declaration of the Rights and Duties of Man. Specifically, the Commission held that provisions requiring mandatory deportation of a non-citizen convicted of an "aggravated felony" violate the right to family life, the rights of the child, the right to a fair trial, and the right to due process. The European Court of Human Rights and the UN Human Rights Committee have grounded their jurisprudence in similar cases on the right to family life, so this decision may expand the scope of human rights protections for non-citizens in the Americas.

While the grounding of the right to fair immigration proceedings in the right to family life and the rights of the child narrows the scope of protection, it is also, symbolically, a powerful description of the harms inflicted by harsh deportation policies. One of the petitioners in this case, Wayne Smith, moved to the United States from Trinidad and Tobago at the age 10 and had been a lawful permanent resident since 1974. Smith is married to a US citizen who survived breast cancer but lost her health insurance; they have a US citizen daughter. He and his wife owned a small business that employed over 15 people (most of whom were recovering drug addicts). Smith pled guilty to a non-violent drug offense (cocaine possession and attempted distribution) in 1990 (before such a crime was a deportable offense). He was denied a humanitarian waiver and deported in 1998; he returned in 1999 and challenged his deportation order based on a 2001 Supreme Court decision that may have made him eligible for a humanitarian waiver. He lost this challenge, and was deported again; in the meantime, his wife and child struggle to cover basic living expenses.
Among other arguments before the IACHR, the US government asserted its sovereign right under international law to expel criminal aliens; that the right to family life under Articles V and VI of the American Declaration protects only against state action that intends to harm family life, not secondary consequences of lawful, reasonable state actions (sound familiar?); and my personal favorite -- that because the United States is not party to the Convention on the Rights of the Child, prior IACHR analysis (pertaining to a party to the CRC) on the rights of the child with respect to their parent's deportation proceeding was not relevant.
The IACHR was not buying any of this. It found that the United States' sovereign rights of expulsion are not absolute, but are subject to a balancing test, drawing from elements laid out by the ECHR and UNHRC, including the strength of family ties, the duration of residence, the hardship of deportation to the family, and the nature and severity of the criminal offense (including age at the time of commission, time span of the offense, and subsequent rehabilitation). While the balancing test is to be applied flexibly, the IACHR emphasized strongly the importance of the best interest of the minor child. The IACHR also rejected the "intent to harm family life" limitation suggested by the US government, and noted that the American Declaration protects against foreseeable consequences that flow from state action.
Because the petitioners had no opportunity to a present humanitarian defense to deportation or to have rights to family considered and because the best interests of their US citizen children were not considered by the decision maker, the IACHR found a violation of Articles V (right to private and family life), VI (right to family life), and VII (rights of the child) of the American Declaration. Notably, the Commission held that heightened due process protections apply in immigration proceedings that include the sanction of deportation, and that the petitioners' deportations violated Article XXVI (right to a fair trial) and XVII (right to an effective remedy) of the American Declaration. The IACHR recommended that the U.S. allow petitioners to return, reopen their deportation proceedings, and present humanitarian defenses, as well as to allow the immigration judge to weigh these defenses. Finally, the Commission suggested that the U.S implement laws to protect non-citizen residents' right to family life. Now those would be some solid family values.

Gender & the death penalty in India

(Thanks to IntLawGrrls for the opportunity to contribute this guest post)

The Indian Supreme Court has had to grapple time and again with the constitutionality of the death penalty.

The leading decision on the issue is Bachan Singh v. State of Punjab (1980). Here the Court (below right) recognized that there was scope for arbitrariness in the award of the death penalty due to unguided judicial discretion in determining sentences. To rectify this, the Court established a paradigm for guided discretion, and restricted the award of death penalty to the “rarest of rare” cases, where the convict is beyond reform and the option of life is “unquestionably foreclosed”. This conclusion has to be based on an analysis of aggravating and mitigating circumstances pertaining to each individual case.

However, as I have argued in my paper, Gender Dimensions of the Death Penalty in India, the principles by which the “rarest of rare” determination is governed are applied in a manner that devalues the forms and sites of violence commonly experienced by women, as compared to those that are more familiar to the male worldview. Thus is retained the arbitrariness of the death penalty regime.
The principles by which the “rarest of rare” determination is governed are morally contingent, and operate against a backdrop of social norms that justify and legitimate (and sometimes even mandate) violence against certain segments of the society (including women).

For example, courts are required to examine:

► Whether the crime is one of extreme depravity;

► Whether there is any continuing threat to society from the perpetrator; and

► Whether there is any scope for the reform and rehabilitation of the offender.

Mental and emotional disturbance or feelings of moral justification are significant mitigating circumstances.

As I show in my paper, courts do not consider women’s common experiences of violence to be particularly “depraved,” because there are often underlying social justifications that provide a veneer of legitimacy to the infliction of such violence. Killings for honour, shame, love, and lust fall into this category, as do the killings of nagging wives, resisting rape victims, and disappointing lovers. In these instances, courts regularly find that the crimes are not heinous enough to fall within the rarest of rate category -- and thus that the perpetrator does not constitute a continuing menace to society. His actions are seen as an aberration rather than an indication of a “criminal tendency.” In all these cases, the Court is therefore able to determine that the perpetrators would be able to reform and get rehabilitated. Such men are seen as “unlikely recidivists,” because the blame for the offence is shifted to the woman who provided unusual provocation, and therefore “called the crime upon herself,” a common social justification for the infliction of violence in the first place.

It is unfortunate that social justifications translate into legal devices for the perpetuation of violence.

Courts also privilege crimes committed for power, for property, and in the public sphere, over crimes within the family. The distinction drawn by courts creates a form of public/private divide, with the law privileging violence within the former sphere. This is discriminatory, since the most common form of violence faced by women around the world is within the family and by acquaintances. Women have unequal access to property, power, and public spaces. It is therefore much less likely that women will face violence in these contexts than within the home or in intimate settings.
The implication of these findings is not that the death penalty should extend to all crimes. Rather, it is that arbitrariness in the award of the death penalty will not disappear merely by providing a set of principles for determining the award of the death penalty.

At the same time, even if the death penalty were to be removed (as I believe it should be), it has to be remembered that law and punishment serve expressive ends. Patriarchal law reaffirms society’s entrenched views about women’s role and their worth.

By consistently discounting women’s experiences of violence in determining the norms by which a society is to be governed, law threatens to continue and further legitimate the already entrenched notions of hierarchy, discrimination, and violence in society.

Read On! The Vagrants

(Read On! ... occasional posts on writing we're reading)

To tell the same story from different viewpoints is not new. The technique won renown in the film Rashômon (1950), and has remained a staple of storytelling ever since.
Yet the way that Yiyun Li (below right) deploys multiple narratives in The Vagrants (2009) is indeed something new.
This novel is the 1st by Li, who was born in Beijing, lived in China till 1996, and who's now an Assistant Professor of English at the University of California, Davis.
Li's novel revolves around a single event yet reveals a myriad of details about a time, a place, and a people.
The event is the execution of Gu Shan, an enemy of the state who years before had given her all to the Maoist vanguard. The time is 1979, the year Li turned 7; desires for democracy are stirring a decade after the Cultural Revolution. The place is Muddy River, a soulless, purpose-built factory city in a Chinese province far from the capital. The people are those who've come to inhabit this city -- vagrants all regardless of their station.
From among these vagrants, Li chooses her narrators. It is a rich assortment, richly characterized. Tiny Tong's tale of bewilderment is told alongside that of Kai, a broadcaster and mother who's married into the seeming safety of a leading political family, yet chafes at her role. Adolescent Nini's resentment at her very different restraints leads her to the loathsome arms of the amoral Bashi. The old Huas collect rubbish, and discarded daughters.
Li addresses an array of issues in The Vagrants: disability, poverty, criminal justice and capital punishment, education, familial hierarchy and filial duty. But she does so without polemic, through wonderfully written, intimate portraits of her characters. Each narrator's small story remains in mind even as the reader ponders Li's larger narrative of an empty and arbitrary society, in a state at odds with its people.
A literary jewel.

Steps forward for Irish same-sex couples

(Delighted to welcome back alumna Siobhán Mullally, who contributes this guest post)

The Dáil (left), the lower house of Parliament in Ireland, has passed legislation giving formal legal recognition to same-sex relationships for the first time.
The Civil Partnership Bill 2010 passed last Thursday evening without a vote, support coming from all (or most) parts of the political spectrum. It now must be considered by the Seanad.
Under the terms of the Bill, marriage-like benefits will be extended to gay and lesbian couples across a range of areas including property, succession, maintenance, pensions. Further legislation is due to extend benefits in the fields of social welfare and tax.
The status of civil partnership will not provide rights and privileges equivalent to marriage, which remains open only to different sex couples. This distinction has remained because it is deemed necessary to safeguard the protection given to marriage in Article 41(3) of the Irish Constitution (right), which states in part:

The State pledges itself to guard with special care the institution of Marriage, on which the Family is founded, and to protect it against attack.

The constitutional text does not, however, make any reference to marriage as being exclusively open to different sex couples. Rather, it is legislative and judicial interpretation of the constitutional text that has presumed this exclusionary stance. Much of the debate on the Civil Partnership bill has touched upon the inequalities that will persist on introduction of this new status, and upon the failure to provide for the rights of children within such partnerships.
Despite these shortcomings, the Civil Partnership Bill has been heralded by many as a mark of progress, a contribution to what Minister for Justice, Mr Dermot Ahern, describes as a ‘modern code,’ that marks a break from a past in which sexual orientation discrimination was commonplace. Included within that modern code are the:
► Employment Equality and Equal Status Acts 2000-2004, which prohibit discrimination on grounds of sexual orientation; and
► Prohibition on Incitement to Hatred Act, 1989, which includes homophobic incitement within its scope.
Introducing the Bill, the Minister for Justice noted that it was now time to add to the legal protections in place against discrimination and exclusion, and to officially recognize and affirm same-sex relationships so as to bring to an end the legacy of prejudice and inequality.
Granting official recognition and affirmation brings with it the question of whether a ‘conscientious exemption’ clause should be granted to those whose religious belief and affiliations do not allow for affirmation or even tolerance of same sex relationships.
A proposed legislative amendment, allowing for such an exemption clause, was dismissed, despite last minute interventions by the Irish Bishops’ conference, who argued that the failure to provide for such a clause was unconstitutional, given the limits imposed on freedom of conscience and on social and civil freedom in religious matters. In response, John Gormley, the Minister for Environment and Green Party representative, criticized the Church’s attempt to exert influence on the legislative process, which he noted was reminiscent of earlier eras of ‘church interference’. The debate on conscience exemption, and its swift dismissal, reflects the changing relationship between Church and State in Ireland, and the waning influence of religion in matters of gender, sexuality and family.
The passing of the Civil Partnership Bill follows on from the judgment that a Chamber of the European Court of Human Rights (left) rendered on June 24th in Schalk and Kopf v Austria.
The applicants had complained that the absence of same-sex marriage in Austria violated their European Convention rights, both under Article 12 (right to marry) and Article 14 (prohibition of discrimination) in conjunction with Article 8 (right to private and family life). They appealed to the Court to interpret the Convention (below right) in light of present-day conditions, and not to restrict the application of Article 12 to different-sex couples. The Court rejected their argument, noting the absence of a European consensus on same-sex marriage. Importantly, however, drawing on Article 9 of the European Union Charter of Fundamental Rights, the Court took the view that the right to marry was not necessarily confined to marriage between different-sex couples. It nonetheless concluded that:
► The question of whether or not to allow same-sex marriage fell to be determined by national law; and
► States continued to enjoy a wide margin of appreciation on this question.
The Court’s judgment left open the question of whether the absence of any form of relationship recognition for same-sex couples might be a violation of the European Convention.
Significantly, the Court’s judgment extends the scope of Article 8. At paragraph 94, it finds for the first time that same-sex couples enjoy not only a right to ‘private life’, but also ‘family life’:

[T]he Court considers it artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would.

Strong dissenting judgments were entered specifically on the Court’s finding of no violation of Article 14 (non-discrimination), suggesting the possibility of change in the future.
For the moment, the Court’s judgment is unlikely to assist the campaign for marriage equality in Ireland. However, it does challenge existing Irish case-law, including the October 2009 judgment in McD v L, in which the Irish Supreme Court found that ‘de facto’ same-sex couples did not enjoy family life within the meaning of Article 8 of the Convention.
Small steps forward!

On June 14

On this day in ...
... 1920 (90 years ago today), Anna Maria Mozzoni (left) died in Rome, Italy, 83 years after her birth in Milan. Through formal and self-education, she studied the works of writers ranging from the ancient historian Plutarch to the 19th C. Frenchwoman whose novels appeared under the pseudonym George Sand. In 1864, Mozzoni herself published a feminist critique of Italian family law. In subsequent years she wrote or cowrote other works, submitted petitions for women's suffrage to her country's parliament, represented her country at international women's meetings, and founded a Milan-based women's organization, Lega promotrice degli interessi femminili. She's "known as the founder of the Women's movement in Italy."

(Prior June 14 posts are here, here, and here.)

IntLawGrrl reviewed

IntLawGrrl Naomi Cahn's brand-new Red Families v. Blue Families: Legal Polarization and the Creation of Culture (2010), co-authored with Missouri-Kansas City Law Professor June Carbone, received extended treatment in yesterday's New York Times column by Ross Douthat.
Imitating movie ads, here're some of the adjectives Douthat used to describe the book:
► "provocative"
► "nuanced"
Kudos!

Intercountry adoption, final thoughts

(Part 3 of a 3-part IntLawGrrls guest contribution, an interdisciplinary conversation on intercountry adoptions between Professor Michele Bratcher Goodwin and Dr. Patricia Y. Jones. Part 1 discussed the case of Justin Hansen, the adoptive child who was sent back to Russia by his American adoptive mother. Part 2 considered the case of a boy arrested with guns at his Minnesota school).
Michele: Each year, over 1,500 Russian children can be expected to be brought into American homes. Generally, this process will cost Americans upwards of $30,000 per child. Some critics point out that it would be far less expensive to adopt children from less exotic locations, like Detroit and Milwaukee, than from abroad. Such concerns usually hint at race, as most children in foster care are black, and studies show that whites would prefer to adopt from abroad or adopt a child with severe disabilities than to adopt a black child.
Patricia: There are a number of reasons why this may be the case.
Many people would simply prefer to adopt a child who looks like they could be a part of their family. Some people are understandably uneasy about navigating the social waters that come with having a child that obviously might not be their genetically related child. That discomfort is part of the price of living in a racially polarized nation.
Perhaps the National Association of Black Social Workers has succeeded in identifying the skill sets and social capacities white parents would need in order to adopt a black child in America. Many white families may not be willing to change their customary social functioning to accommodate a black child. Children bring change -- even when they are your own biological children. Adopting transnationally also requires developing new skill sets, and perhaps making social changes in a family’s usual social network. Just because the Russian children share the same complexion as their prospective parents does not make this any less a cross-cultural adoption. This is especially critical when adopting older children.
Michele: But there are also some issues that policy makers and those interested in transnational adoptions would be wise to address, particularly given the profit motivations and financial incentives at play in international adoptions. Transnational adoptions are now a growing cottage industry. Each year the number of international adoptions by Americans increases -- despite language barriers, cultural differences, and financial costs.
Americans lead the world in adopting from abroad. Given what Americans are willing to spend financially, and expend emotionally, some agencies with less altruistic motivations have entered the adoption marketplace. In the worst cases, children not available for adoption, because they have families or were not sent to an orphanage, end up being sent to the United States. Some of these matters could be more easily dealt with when there are no language barriers. But given the significant number of adoptions from Korea, Ethiopia, China, Russia, Guatemala, and other countries where English is not spoken, the challenges become more obvious on inspection.
Patricia: The transnational adoption world would change dramatically if prospective parents were required to have conversational knowledge of the child’s primary language. Many of the abuses by those trafficking in children would stop if they knew prospective parents would be able to converse with their prospective children from another country.
Having a shared language would seem to be the rudimentary platform for which parenting a child from another country can begin. Children with a primary language are routinely placed in homes with parents who cannot communicate with them and unfortunately with parents who also have no desire to learn the child’s primary language. That is absurd.
Michele: The tales of Justin Hansen and Joey Jarvis are yet to fully unfold. Joey, the 14 year old on whose case we posted yesterday, is now in juvenile detention awaiting a decision from prosecutors as to whether he will be charged as an adult from threatening to kill his classmates and teachers. And as for 7 year old Justin, about whom we posted earlier. He has returned to his native country after an unsuccessful adoption by a woman who likely wishes that she had been better prepared for the challenges of adoption.
Exposed, however, are the weaknesses in the intercountry adoption system. Follow-up support is not always available. And support groups are not always local; rather, they are spread across the country (and world).

Intercountry adoption, a 2d snapshot

(Part 2 of a 3-part IntLawGrrls guest contribution, an interdisciplinary conversation on intercountry adoptions between Professor Michele Bratcher Goodwin and Dr. Patricia Y. Jones. Part 1, which discussed the case of Justin Hansen, the adoptive child who was sent back to Russia by his American adoptive mother, is here. Part 3 is still to come.)

Michele: Only a few days before Justin Hansen’s untimely departure from a Washington, D.C., airport, another Russian boy, Joey Jarvis, age 14, was placed into police custody in Hastings, Minnesota, after threatening to kill his classmates and teachers at Hastings Middle School. (image credit) Although twice the age of Justin, he too had been returned by his adoptive parents. Only they did not send him back to Russia -- they gave him to the State of Minnesota last year.

This past April 5, Joey, who had been adopted from a Russian orphanage when he was 3 years old, set off to school with a gun, bullets, and rage. According to police, no one was shot because the bullets were the wrong size. But that did not stop Joey from breaking windows and attempting to break into classrooms -- where his classmates and teachers waited in fear, hoping for the police to arrive.

His adoptive parents, whose names have not been released for their safety, tried to warn state officials about Joey’s violent tendencies, his threats to cut family members into “tiny pieces,” and other antisocial behavior, including an effort to taint drinks with rat poison. Unlike the Hansens’, Joey’s parents did try therapy -- and lots of it -- before giving up.

Patricia: Theirs is a story of parents who appeared to try to go the distance with their adopted child. While they had some clues even at age 3 that this child might have severe emotional problems, because they were not mental health professionals they probably were not attuned to what these signs meant and the possible severity.

Once a child, especially a teenager, is a clear danger to himself and others, then the parents have to remove the child for the safety of their other children and themselves. They exhausted their healthcare benefits trying to get this child psychiatric help. After their insurance was exhausted, their only choice was to give him to the state so that he could continue to get help. The state was not a better parent for this child. His documented medical background and psychiatric history were essentially ignored, and the child welfare system placed Joey in another home. A large number of people give up their biological children to the state -- which essentially means the child is placed in child welfare or the juvenile delinquency system. Of those children relinquished to the state, a disproportionate number of the cases involve adopted children.

Michele: The journeys of Joey Jarvis and Justin Hansen are two snapshots, and do not paint the full picture of American adoptions from Russia, or from abroad generally. Many international adoptions help satisfy the need for American adults who want to parent, and provide children with healthier homes and living environments than they would have had at Russian orphanages. The stories of these two boys help to elevate awareness of the need for a sustained contemporary conversation about international and local adoptions -- and specifically, for urgent examination of the quality of care children receive in group homes, orphanages, and other living situations, including within families.

Intercountry adoptions, a conversation

(Part 1 of a 3-part IntLawGrrls guest contribution, an interdisciplinary conversation on intercountry adoptions between Professor Michele Bratcher Goodwin and Dr. Patricia Y. Jones. Inspired by a recent news story, it follows the publication this February of a book Michele edited, Baby Markets: Money and the New of Creating Families)
United States and Russian officials have been discussing what to do about U.S. adoptions from Russia. The meetings come on the heel of the story that Justin Hansen, a 7-year-old Russian boy, was sent back to Russia by his adoptive mother, Torry Hansen, a nurse from Tennessee. While most of the attention in the case has focused on her behavior, little has been explored about the complex issues associated with Russian adoptions.
Russia and former Soviet bloc countries have been a draw for Americans. Couples from the United States adopt more Russian children than any other nation.

But this story made headline news because of a controversial, and rather unorthodox decision made by his adoptive mother, along with his adoptive grandmother: They sent him back to Russia, with an “unaccompanied minor” ticket and a note. Their personal decision has become the subject of international policy and adoption politics, drawing significant scrutiny to international adoptions, and raising questions as to why Americans pass over plenty of children available for adoption in the United States. Critics and child advocacy groups wonder why the women did not try harder.

We endeavor here to discuss the underlying issues.

Patricia: It’s reported that the adoptive mother only had “Justin” in her home for six months. That's hardly enough time for either parent or child to get beyond any adjustment issues to a new home, family and culture. While we don’t know the full story and what she did try, sending him back is another rejection, and one that can be psychologically traumatizing. There are so many messages in that: “You are unloveable,” “You are not wanted,” “You are not worth investing in.”

When we have biological children, we don’t know what we are going to get, and we don’t get to send them back. The hopeful aspiration is that the commitment to adopted children will be the same as one we would have to a biological child.

Michele: In their defense, the mother and daughter pair asserted that they tried everything in their power to integrate the child into his new American life -- including changing his name from Artyom, and giving him a loving home. But ultimately they feared for their safety. They allege that the adoption agency lied to them about his emotional and mental health. In the note sent with the child, the adoptive mother wrote:

'This child is mentally unstable. He is violent and has severe psychopathic issues/behaviors. I was lied to and misled by the Russian Orphanage workers and director regarding his mental stability and other issues.'

Patricia: How would you (or your child) feel if you were taken to Russia? Given strange food, isolated from anyone who spoke your language? Told “you are lucky to be here” in a language you did not understand? And stripped of your name -- how was that understood by the child? A name is a source of identity and connection to culture. Stripping persons of their name is a means of culturally isolating them, and basically communicating that their culture or nationality is not acceptable. It was a common practice during slavery. While a loving home may have been the intent of these women, one could question the loving home premise. I am not sure the child felt loved; in fact his behavior suggests he was very unhappy and not adjusting. Because the adoptive mother did not know the child’s primary language, she was incapable of communicating with “Justin” about his discomfort.

As a psychologist, I am concerned that the mother was unfamiliar with her adoptive child’s native language. At 7 this is his primary language. A thorough assessment would have noted the language barrier as possibly interfering with the adequate parenting of this child. A good home assessment would also include some exploration of the parent’s familiarity with, affinity for, and capacity to affirm the child’s culture. The quality of preparation for prospective parents to adopt transnationally varies from agency to agency.
Michele: This case and others raise a number of urgent issues about international adoptions, including the:

► Exploitation of children,

► Vulnerability of adoptive parents,

► Market structure of adoptions, which incentivizes placements at all costs,

► Morality of “returning children” as if they are items from a store, and

► Lack of capacity for some adoptive parents to meet the challenges of raising children from different cultures.

(Still to come: Part 2 & Part 3)

CEDAW brings advances in Saudi Arabia

As a child, Tala Hejailan read To Kill a Mockingbird and other books and dreamed of becoming a lawyer. Today, she's a legal consultant waiting for a proposed law to become reality and allow her to become a "real lawyer," fulfilling that childhood dream. The only woman "lawyer" in the commercial law practice where she works, Hejailan cannot represent clients in court because no woman, lawyer or party to a suit, may appear in court unless accompanied by a mahram, a male guardian. A law proposed in February may change that to allow women lawyers to represent clients in family law matters. This would be a boon not only to women who want to be lawyers, but to women needing representation as well: since a woman's mahran is often her husband, she is at a clear disadvantage when seeking divorce or child custody.
The proposed law, which would be limited to family law despite the fact that women are obviously also parties to commercial disputes and subject to criminal conviction, has been under discussion for several years. It would continue efforts to bring Saudi Arabia in line with its obligations under the United Nations Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), which it joined in 2000. Ratification was subjected to a reservation neutralizing provisions that conflict with Saudi law, however, and it wasn't until 2004 that King Abdullah (left, then crown prince) asked the (all male) Council of Ministers to modify laws to comply with CEDAW. Wisely, he appointed 9 women to advise the council on matters concerning women. He also suggested having women judges join the men on the bench in family courts, but so far, the only progress in this area, significant as it is, is that in 2007, women were given the right to counsel women and three law schools began accepting women students. May the wise King Abdullah and his advisors continue such reforms to that students like Asma Alamdar my realize their dreams of "being a successful law student and [having] a great career in law in Saudi Arabia," practicing "all that they ha[ve] learned, not just part of it."

(credit for still photo of courtroom scene from the movie To Kill a Mockingbird (prior post)

Gendercide, sex trafficking in China

(Our thanks to IntLawGrrls for this opportunity to guest post on the article that we recently published in the Fordham University International Law Journal)

There is a demographic crisis in China that arguably rises to the level of "gendercide."
Women in China are bought and sold, murdered and made to disappear, in order to comply with a governmental policy that coincides with the cultural phenomenon of male-child preference. Demographers estimate that there are between 50 and 100 million missing women in China. In answer to the resulting scarcity of women, gangs, "specialist households," and "specialist villages" have been working in an organized chain to kidnap and sell women in China.
Several factors work interdependently to cause a serious shortage of women in China. Women are disappearing because of:
► social pressures of male-child preference;
► zealous enforcement of China’s "One-Child Policy" by local government authorities; and
► murderous responses to this policy undertaken by millions of ordinary people in China, who are desperate to have a son.
(credit for Reuters photo of above-right mural extolling One-Child Policy)
The 2000 Chinese census reported that 117 boys were born for every 100 girls, compared to the global average of 105 or 106 boys to every 100 girls. This disparity may be linked to the practice of aborting female fetuses and killing female babies.
This gender imbalance has caused an increase in prostitution and human trafficking in China.
Sex trafficking in China takes many forms:
► purchase of women for brides;
► purchase of a male son; or
► sale of unwanted female children.
Many men, primarily in rural China, desperately seek brides in a country where women are in short supply. These men will resort to purchasing a trafficked woman for marriage. Couples seeking a male child will sell or even murder their girl child in order to make room for the purchase of a trafficked baby boy. Young women and infants are bought and sold like cargo.
Human trafficking in China is a lucrative international business that is expanding due to several factors:
► the aggressive implementation of the One-Child Policy;
► a faulty legal system, and
► the blind adherence to longstanding cultural traditions that devalue women.
In China, Communist Party directives overshadow the legislative and judicial process. The primacy of government policy results in the ineffectiveness of laws that theoretically protect women and female children in China.
In order to reverse the deleterious effects of the One-Child Policy and its commodification of women, the Chinese government must make a commitment to implement laws and policies that can reverse longstanding cultural trends and combat discriminatory traditions against women.

(credit for China map, courtesy of International Labour Organization Mekong Sub-regional Project to Combat Trafficking in Children and Women)

Since 1979, China has instituted economic reform policies that miraculously work in harmony with a Communist political system. Now China needs to perform another miracle: the adoption of cultural reforms that produce gender parity and that stop the marginalization of women in Chinese society. Only then will the lucrative business of trafficking in women be reduced, if not eliminated entirely.

A healthy development

Something that President Barack Obama and I have in common:
Both our mothers died too young from disease. And to the end, both worried as much about their medical bills as they did about their medical treatments.
Obama wrote about his mother's plight in The Audacity of Hope. He spoke of it often on the campaign trail and in these last many months of debate. And yesterday, when health care reform became law, he spoke of his mother's plight again:

Today, I'm signing this reform bill into law on behalf of my mother, who argued with insurance companies even as she battled cancer in her final days.

Any child who's shared this experience knows the depth of emotion embedded in those few words, understands the source of the tenacity that has made health care reform a reality.

'This is the Civil Rights Act of the 21st century,'

Rep. James E. Clyburn (D-S.C.) said. He's one of many placing this legislation on par with some of America's best moments.
It's not perfect, not the truly universal safety net for which some hoped. It proclaims no right to health as many Democrats had done during the campaign.
Yet in freeing some families from the awful web of pre-existing condition clauses and COBRA cutoffs, in giving everyone access to health insurance, it is a formidable guarantee, in a country long chary of socioeconomic rights, of human security.
It does our mothers proud.

Gender, equal protection & immigration

(IntLawGrrls is pleased to welcome back Ruthann Robson, who contributes this guest post, cross-posted from Constitutional Law Prof Blog, regarding the U.S. Supreme Court's announcement yesterday that it will review Flores-Villar v. United States. Ruthann further contributes the Go On! post below)

The question is a narrow one:

► Does decision in Nguyen v. INS (2001) permit gender discrimination that has no biological basis?

In Nguyen, the U.S. Supreme Court upheld 8 U.S.C. § 1409, which imposed different requirements for a child’s acquisition of citizenship depending upon whether the citizen parent is the mother or the father. Writing for the Court, Justice Anthony M. Kennedy found that the statutory gender-based distinction – applicable when the parents were unmarried, when only parent was a citizen, and when the child was born outside of the United States – survived a constitutional challenge based on the “equal protection guarantee embedded in the Due Process Clause of the Fifth Amendment.” The majority found that the statute served two important governmental interests:

► The importance of assuring that a biological parent-child relationship exists; and

► The importance of assuring that the child and the citizen parent have a demonstrated opportunity or potential to develop the “real, everyday ties that provide a connection between child and citizen parent and, in turn, the United States.”

The Court in Nguyen relied on biological reasoning -- women give birth and men may not even realize their paternity -- and concluded:

Given the 9-month interval between conception and birth, it is not always certain that a father will know that a child was conceived, nor is it always clear that even the mother will be sure of the father’s identity. This fact takes on particular significance in the case of a child born overseas and out of wedlock. One concern in this context has always been with young people, men for the most part, who are on duty with the Armed Forces in foreign countries.

The Court then provided statistics about the number of military men in foreign countries in 1969, the year Nguyen was born in Viet Nam -- although, as the dissenting opinion noted, after Nguyen's parents split up, he lived with the family of his father’s new girlfriend and in 1975, before his sixth birthday, Nguyen came to the United States, where he was raised by his father. A DNA test showed a 99.98% probability of paternity, and the father obtained an order of parentage from a state court.

The Court's grant of certiorari in Flores-Villar v. United States will involve a reconsideration of Nguyen. Flores-Villar was born in Tijuana, Mexico, in 1974 to a noncitizen mother and a United States citizen father who, importantly, was 16 at the time. His father and grandmother, also a citizen, brought Flores-Villar to the United States for medical treatment when he was two months old. He grew up in San Diego with his grandmother and father, who acknowledged paternity with the Civil Registry in Mexico on June 2, 1985. Apparently, Flores-Villar was not in touch with his mother, who remained in Mexico.

The gendered differential imposed by the statute at issue in Flores-Villar was the requirement that a citizen father must have resided in the United States for at least five years after his 14th birthday to confer citizenship on his child, while a citizen mother had to reside in the United States for a continuous period of only one year prior to the child’s birth to pass on citizenship. Moreover, in the case of Flores-Villar, the INS denied a petition for citizenship on the basis that because the citizen father was 16 years old at the time of the child’s birth, it was “physically impossible” for the father to have the required physical presence after the age of 14 in order to comply with the statute.
In the 2008 appellate decision in Flores-Villar to be reviewed, a panel of the U.S. Court of Appeals for the Ninth Circuit -- comprising Judges Pamela Rymer, Cynthia Holcomb Hall, and Andrew J. Kleinfeld -- upheld the statutory scheme. It held the asserted governmental interests -- avoiding statelessness, as well as assuring a link between an unwed citizen father, and this country, to a child born out of wedlock abroad who is to be a citizen -- to be important. The means chosen, it also held, substantially further the objectives. The Court stated:

Though the fit is not perfect, it is sufficiently persuasive in light of the virtually plenary power that Congress has to legislate in the area of immigration and citizenship.

This “fit” will certainly be at issue before the U.S. Supreme Court.

Then-Justice Sandra Day O’Connor’s dissenting opinion in Nguyen, which was joined by Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer, stressed the heightened scrutiny required by the case involving single-sex education at VMI, the Virginia Military Institute. In that judgment in United States v. Virginia (1996), a closer fit was required between the “discriminatory” means chosen and gender stereotypes. The Nguyen dissenters thus reasoned that the statute at issue in Nguyen was

paradigmatic of a historic regime that left women with responsibility, and freed men from responsibility, for nonmarital children,

and added that it could easily have been rendered sex-neutral.

In Flores-Villar, because the gender differential is a residency requirement -- and not, as in Nguyen, a relationship-with-child requirement -- the “fit” may not be sufficiently tight. If the Court applies VMI, the question will be whether or not there is something unique about men that requires them to have a longer residency than women before men are truly “citizens.” However, the Court will also certainly rely on the plenary power of Congress in the area of citizenship.

Balancing gender equality and citizenship will be the task for the Court -- a task which the newest Justice, Sonia Sotomayor (right), will certainly undertake.