In 2008 Congress enacted amendments to the Americans With Disabilities Act (ADA) that expanded the ADA’s definition of “disability,” requiring employers to provide reasonable accommodations to workers with temporary impairments. This Article argues that the expansion of the protections of the ADA effectively expanded the protections of the Pregnancy Discrimination Act (PDA), too. As the Supreme Court recently clarified in Young v. United Parcel Service, the PDA generally requires employers to treat pregnant workers “the same as” non-pregnant workers who are similar in their ability or inability to work. Therefore, to the extent that pregnancy-related impairments mirror impairments that are accommodated by the expanded ADA, pregnant workers, too, should be entitled to reasonable accommodations.
Although some scholars and courts have suggested that ADA-covered employees cannot be proper comparators for PDA plaintiffs, I make the case that these workers can, and should, be compared. First, I argue that PDA precedent requiring employers to treat pregnant workers the same as other impaired workers, as well as the legislative history of the PDA compel this comparison. Second, I draw on two theoretical approaches—intersectionality theory and “disruption” theory—to demonstrate that denying ADA comparators to PDA plaintiffs ignores the unique intersectional nature of pregnancy, and would invite stereotyping, segregation, and discrimination. In conclusion, I note that the Supreme Court itself has signaled that courts should take a more expansive view of the types of evidence that can support a PDA claim, which should include a broader approach to the comparator question.
During the fall of 2014, in what seemed like a change of heart, Republican congressional candidates began calling for a policy that reproductive rights advocates have supported for years. Over-the-counter (“OTC”) oral contraception (“OC”) became these candidates’ way to connect with the women alienated by the Republican Party in recent elections. They emphasized how OTC access would allow women themselves, not employers or the government, to have control over contraceptive decisions. Liberals responded that this new effort was just a Trojan horse—legalizing OTC access would not only increase the actual price tag on OC, but it would also remove OC from the Patient Protection and Affordable Care Act’s extended insurance coverage of contraception. Additionally, reproductive rights advocates noted that it is the FDA, not Congress, that legalizes OTC drugs, and the FDA has not received any applications from drug manufacturers who want to sell OC OTC. In reality, both sides have something of a valid argument. OTC OC would be an important step toward reproductive autonomy for American women. It is also correct, however, that an immediate liberalization of OTC presents several issues, economically, politically, and culturally. Despite these valid critiques, OTC access for OC is a change that is worth the time and effort to move past politics and get it right, for many reasons. Requiring insurance companies and Medicaid to reimburse women for OTC OC purchases is a step toward establishing an accessible market and ensuring corresponding reproductive autonomy for women in the United States, which should accompany legalization of OTC OC.
Kim is a transgender parent who was ordered to pay more in child support than she earned. When she could not pay, a court found her in contempt and put her in jail. In jail, she was dressed in a woman’s uniform, paraded through every part of the men’s population, and then held in solitary confinement in the wing for violent male offenders. Her story provides an example of how courts sometimes view legal fictions as more real than the facts of a person’s life.
Legal fictions include presumptions, which are defined as “legal inference[s] or assumption[s] that a fact exists because of the known or proven existence of some other fact or group of facts.” When used appropriately, legal fictions can facilitate the law’s legitimate purposes. However, when facts contradict legal fictions, facts should be considered, in order to temper the potential for resulting irrationality and injustice. Legal fictions impact specific groups disproportionately. This is particularly true for those whose experiences are outside judges’ experiences.
This Article gives an example of this disproportionate impact and recommends that courts consider discrimination in hiring as relevant to whether a parent is voluntarily unemployed for the purposes of imputing income for child support determinations. Part I demonstrates how multiple judicial officers’ distraction, imagination, and misguided reliance on legal fictions, rather than on the facts of the individual’s life, made injustice real in Kim’s life. It attempts to understand judges’ unarticulated reasoning through a re-created conversation. Part II discusses legal treatment of transgender people in general. Part III suggests legal recommendations to promote clearer thinking and more rational decisions within the courts regarding the distracting and emotionally charged issues surrounding transgender individuals. Specifically, I suggest that the legal fiction that permits courts to impute income to unemployed parents should change to explicitly recognize discrimination in hiring. Courts should adopt an evidentiary rule accepting self-reports of gender identity. To facilitate legal thinking that transcends simplistic binary models of human experience, judges should make an effort to understand more about trans people. Judges should also adopt a simple schema for understanding the distinct categories of sex, gender identity, gender expression, and sexual orientation. Judges should be evaluated according to their ability to prioritize facts (here, discrimination against transgender people in hiring, which leads to unemployment) over legal fictions (here, a parent able to work but not working is voluntarily unemployed, rather than the target of discrimination in hiring). Finally, judges should be evaluated for their ability to prioritize facts over their own fears.
A series of events in 2014 brought significant attention to the United States-Mexico border. Over the summer, reports of an influx of undocumented Central American immigrants began circulating. Though most coverage mentioned only children crossing the border, many of these young migrants traveled alongside their mothers. Reports of this influx raised public awareness about the increased level of immigration enforcement at the border and the rise of federal family detention centers in south Texas. That same year, a series of lawsuits against the State of Texas’s House Bill 2, which implemented significant restrictions on reproductive health clinics and abortion services in the state, shone a light on the health crisis facing women in the Rio Grande Valley.
Part I of this paper lays out the constituent systems of immigration enforcement and anti-abortion policies in recent Texas history and situates these systems within larger national trends. Part II addresses the way the systems work together, using a framework of “intersectional subordination” to highlight the particular violence they work upon undocumented immigrant Latina women and Latino/a communities more broadly. Part III gives a brief historical perspective on the intersectional failure of the Chicano/a rights and reproductive rights movements. It argues that the marginalization of Latina women, generally, and activism against Latina reproductive oppression specifically, has contributed to the development of an abortion jurisprudence that fails to remedy the expansive negative outcomes of anti-abortion policies. Finally, Part IV concludes by arguing that the undue burden standard fails to protect marginalized women from violations of their reproductive and bodily rights and argues for reworking abortion jurisprudence and reproductive justice advocacy to better encompass the full intersectional experience and racialized outcomes of anti-abortion policies.
The desire of an individual to become a parent can be very strong, especially in ‘child-centric’ societies, where the idea of having children and raising a family is highly valued. In those societies, the prominent pro-natal nature translates into policies and laws regulating reproduction. The Jewish-Israeli society is a prime example of such a society where the use of state-funded Assisted Reproduction Technologies (ART) is the highest in the world—eight times higher than the international average. However, the road to becoming a parent is not as smooth to all members of Israeli society. A recent case that went all the way to the Israeli Supreme Court proved how the current Israeli reproductive policies, particularly surrounding third-party reproduction methods i.e., adoption or surrogacy, are inaccessible to people with disabilities (among other minority groups) who share the same great desire to become parents.
The Ora Mor Yosef case revolves around a Jewish-Israeli woman with muscular dystrophy who could not bear a child because of her impairment. Her dream of becoming a mother was so powerful that after exhausting all of her other options, she used a surrogate, sperm donation, and egg donation to bring a baby into the world. However, the lack of genetic-biological connection to the baby led the courts to decide not to recognize Ora as the mother, meaning that she never had the chance to even see the baby.
This Paper will examine the exceptional case of Ora Mor Yosef in a broad context and from a “disability legal studies” perspective. It will compare Israeli socio-legal treatment of what I refer to as the right to become a parent with the United States legal system and will show how Israeli law makes it more difficult for women with disabilities to have children. It will continue with a discussion on the concept of disabled motherhood from a comparative Israeli-American perspective. This discussion will illuminate that there are still universal struggles and hardships for people with disabilities, specifically women, as they endeavor to become mothers and in raising their children. By using a Disability Legal Studies framework and a socio-legal analysis, this interdisciplinary paper will bring to the foreground issues and ramifications that were not found in the original reasoning of the Israeli courts’ rulings on the Ora Mor Yosef case, and will demonstrate the crucial role legal institutions play in the social construction of disability and its treatment by society. It is my hope that this paper will therefore help bring more attention to the issue of disabled parents and prevent tragic instances like the one standing in the heart of this paper from recurring.
With Chelsea Manning’s case making headlines, and hit television show Orange Is the New Black highlighting the struggles of a trans woman in prison, the public is slowly becoming aware of the complex issues facing transgender prisoners. Although it is difficult to determine the precise number of this population, a 2009 study by Brown and McDuffie estimates that approximately 750 prisoners in the United States identify as transgender. This is a relatively small portion of the U.S. prison population, but it represents a sizable portion of America’s transgender population. Nearly one in six transgender Americans—and almost half of the African American transgender population—has been incarcerated in a state or federal prison. Although the issues and concerns of this population have gained more attention in legal scholarship, academia, public policy, and social discourse in recent years, many issues are still largely unresolved for transgender inmates, including their access to medical care.
Part I of this Note will provide a background on gender dysphoria and will introduce the concept of prison as a uniquely and problematically gendered space. Part II will introduce the standard of “serious medical need” that is used in Eighth Amendment jurisprudence, with particular focus on how courts have applied this standard to mental health concerns, a category within which gender dysphoria falls. Part III will introduce the central argument that, while increasingly more courts have found gender dysphoria or gender identity disorder to be a serious medical need, they have done so predominantly—and thus problematically—in cases in which the plaintiff has taken extreme measures to remedy his or her lack of treatment. This arguably establishes a pattern whereby attempted suicide and self-surgery become metrics for evaluating the severity of gender dysphoria, and implies that gender dysphoria is not deserving of treatment until it has reached these catastrophic levels. Part IV will address the tension between using medical rhetoric to secure necessary rights for prisoners and avoiding the pathologization of the transgender community that is inherent in the Eighth Amendment argument. Part V will conclude by providing alternative legal arguments as well as broader policy suggestions that may be used alongside the traditional Eighth Amendment argument to secure medical care for transgender inmates.