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On Pointe: The Right of Children to Explore their Gender Identity

Marie-Amelie George, Exploring Identity, 54 Fam. L. Q. __ (Forthcoming, 2021), available at SSRN.

I recently came across a pilot podcast series from Scottish Ballet called Scottish Ballet’s Half Hour Call. The premise of the podcast is to discuss how ballet and ballet companies fit the world we currently live in. In the second episode, dedicated to masculinity in ballet, Myles Thatcher (choreographer and dancer at San Francisco Ballet) shared a story that made me think of Professor M.A. George’s captivating latest article, Exploring Identity.

Thatcher relates how exciting it was that while he was choreographing a piece for Ballet22 (twodos), a body type, gender identity, and race inclusive company that performs dances that break gender normative traditions, he started looking at pointe shoes in a new way. Even though he has been aware that gender exists beyond the binary, that collaboration made him realize that “a pointe shoe is not a gender object.” Transcending ballet’s common binary understanding of gender opened up for Thatcher new avenues of creativity and experimentation in his choreography.

This is precisely what Exploring Identity does. George’s work paves the way for all legal actors and operators (i.e., parties, practicing attorneys, advocates, activists, policymakers, judges, law professors, and law students) to think about gender in the law in new, expansive, and more inclusive ways. The article surveys and discusses custody disputes involving “gender expansive” children. George employs this last term as an umbrella to refer to “transgender, nonbinary, and children exploring non-traditional gender identities.” By analyzing the disputes between parents who disagree on how to address their child’s expansive gender identity, George makes us realize that often, much like ballet, the law does not transcend the gender binary.

After comprehensively surveying the available custody cases in which parents dispute how to manage the child’s gender identity (which in itself is a great contribution), George concludes that judges, no matter the result of the case, frame the issue incorrectly. Judges erroneously understand gender identity as fixed and binary. Consequently, even when they try to address a child’s evolving and/or non-binary gender identity, they mistakenly focus in the custody battles on determining which parent is correct about the child’s (future) identity or best suited to support such gender identity.

Instead, George argues that courts should be focusing on determining which parent is best suited to support their child’s exploration of their gender identity. George arrives at this conclusion by examining our current understanding of gender identity, the arguments parents make in the custody cases, and courts’ rationales in such cases.

Regarding the first aspect, the article explains our developing understanding that gender is a spectrum in which identities may range from woman to man, including nonbinary, agender, and individuals with other types of gender expansive identities. However, as George points out, nonbinary identities are almost invisible in today’s society, even if they represent a sizeable group of individuals. This erasure, the article explains, could be due in part to the mismatch narrative (about being born in the wrong body) from early transgender rights advocacy, which accepts rather than challenges the binary view. In addition to explaining how we have moved away from binarism, the article recounts the emerging insights from recent scientific studies that show that gender identity in pre-adolescent children, contrary to teenagers, is not stable.

These two explanations about gender help contextualize parental arguments and legal rationales in custody cases. On the one hand, George points out that, in parental disputes about their child’s gender, parents opposing the new identity, surprisingly, do not typically make anti-transgender arguments. Rather, most parents cannot escape their binary understanding of gender or the inner workings of their own transitioning process into accepting their child’s gender. For that reason, they typically argue either that their gender non-conforming children are not transgender or gender expansive because they do not embrace all the characteristics of their opposite natal gender or that the child’s gender expansive identity was created by external pressures.

On the other hand, what drives the misguided response of the courts is their lack of awareness that gender in preadolescent children is not stable. George explains that the three approaches that courts follow in awarding custody correspond to the imprecise approaches thus far developed to work with gender expansive pre-adolescents: reparative, affirmative, and watchful waiting. Although only one of these approaches pathologizes gender expansiveness (i.e., reparative), courts’ application of all three is predicated on the wrong premise that the current gender of the child will be their future one. As gender is not fixed nor stable at that stage, George argues that the determination of custody should be based instead on the best interest of the child to explore their gender identity. It should not be based in a determination of what is (or will be) the gender of the child.

This proposed approach would remove the binarism as well the idea of gender stability from the legal determinations. As such, the law could open new spaces for experimentation to children and parents by conveying that gender is much more diverse than the traditional categories and its final form could be unknown.

George posits that this proposal is not foreign to what courts have been long doing in custody cases in which the decision of awarding custody hinges on the race, religion, or sexual orientation of the children. By a comprehensive review of the case law in these three areas, the article shows that courts across the United States have recognized as basic to children’s well-being their capacity to explore their racial, religious, and sexual identities irrespective of their final definition and with independence of their parents’ preferences. This is just a new iteration of an old principle, like men and non-binary individuals on pointe.

Perhaps there lies the greatest impact of the article for me. It forced me to examine if, like the judges awarding custody to a gender affirmative parent, I, like Thatcher, have been reverting to traditional understandings of gender instead of ungendering the law. As such, George’s piece, like Ballet 22 for Thatcher, has opened new opportunities for me and my work.

I am sure reading George’s article will invite similar and more profound reflections from legal actors and operators. I cannot wait to read some of those reflections when I assign the article in my classes to discuss gender but also to serve as a primer to discuss custody cases and children’s identity in general. But most importantly, I hope the article reaches judges, advocates, lawmakers, and attorneys so that the much needed revamping of gender binarism in the law takes place.


Editor’s note: for another review of Exploring Identity, please see Erez Aloni, Judging Gender, JOTWELL (September 13, 2021).

Cite as: Aníbal Rosario-Lebrón, On Pointe: The Right of Children to Explore their Gender Identity, JOTWELL (September 13, 2021) (reviewing Marie-Amelie George, Exploring Identity, 54 Fam. L. Q. __ (Forthcoming, 2021), available at SSRN), https://family.jotwell.com/on-pointe-the-right-of-children-to-explore-their-gender-identity/.

Toiling–and Not Toiling: Law, Gender, Class, and Unemployment

In the early days of the pandemic, the unemployment rate reached close to 15% , and the number of families that had at least one unemployed person doubled, to almost 10%. Those unemployment rates vary by race and gender: Black and Hispanic families were more likely to have one unemployed person than white or Asian families, and, several months into the pandemic, the US Census reported that women were more than twice as likely as men not to be working because of child care issues.

These statistics suggest profound impacts on the family. Enter sociologist Sarah Damaske’s new book, The Tolls of Uncertainty: How Privilege and the Guilt Gap Shape Unemployment in America (2021). The Tolls of Uncertainty explores the intersections between unemployment and family obligation through interviews with 100 people in urban and rural Pennsylvania. Damaske debunks various myths about the unemployed, such as that they are lazy or clearly differ from the employed, and shows that although men may face expectations to be the breadwinners, ”women appear to bear much higher levels of guilt and shame for losing their jobs.” (P. 14.) And the book proposes policies that support not just the unemployed but also their families.

The story of unemployment unfolds in the book’s three major sections, the first on losing a job, the second on the consequences, and the final section on the struggles people face in returning to work. Damaske began her research in 2012, just after the Great Recession, but during a time of economic growth. Although situated during a particular time period, the book offers enduring lessons about unemployment and the family, regardless of the national economic picture – and, as Damaske explained in a May 2021 New York Times article, the pandemic provides yet another example of how job loss affects men and women differently.

As a sociological account, the book provides rich detail on what it means to be unemployed in America. As she has described in other research, the patterns Damaske found were that: “Middle-class women were most likely to begin an immediate and deliberate job search, middle-class men were most likely to take time to attempt to return to work, working-class men were most likely to report an urgent search characterized by their willingness to take “any job,” and working-class women were most likely to report a diverted search, in which their job search was either delayed or stopped.”

Although the book focuses on the effect of unemployment, family and gender role responsibilities pervade every chapter. Here’s just one of the stories Damaske tells. Although Tamara did not finish high school, she later earned a GED and then – understanding that fast-food jobs would lead to a dead end – enrolled in a program to earn her nursing degree. Her son’s father provided the necessary childcare so she could pursue her studies. During the second semester, however, her son’s father left them, and she was unable to find childcare, so she was forced to quit the program. After finishing a certificate program relating to medical records and finding jobs that paid scarcely above the minimum wage, and following even more efforts at education, Tamara and Damaske spoke after Tamara’s most recent job loss, when she had been fired because she’d had to leave work to take care of her son’s medical emergency. (Pp. 53-54.)

And that story is not even in the chapter on The Guilt Gap and the Second Shift (P.126), the sole chapter explicitly focused on the home. (By “guilt gap,” she means that women had higher amounts of “self-blame” for their unemployment and compensated for that guilt (P. 10) by privileging their family’s needs over their own (P. 109)). In that chapter, Damaske contrasts how men and women handle household responsibilities when they become unemployed. Damaske distinguishes between “routine” jobs, such as cooking, and “nonroutine” chores, such as car maintenance. The pattern she found is not surprising: virtually all of the women and “about half of the men increased the number of routine chores they did at home. But men’s routine chores increased just a bit; they were now ‘helping out’ a little more.” (P. 118) Such an unequal division is not, Damaske notes, what most people claim they want, but women who were unemployed compensated for not working by doing significantly more routine household work – men did “a bit” more. (Pp. 128, 131.)

The major class difference she found was that, notwithstanding unemployment, middle-class women kept their children in day care, while working-class women could not; consequently, upon unemployment, working-class women additionally “shouldered almost all the childcare in their households.” (P. 149.) Damaske provides additional class lessons, showing that unemployment offers a microcosm of how disadvantages accumulate; the white, middle-class men in her study were more likely to receive severance pay, have savings, and take advantage of “their gendered ability to prioritize their job search over tasks at home” as well as in their supportive networks. (P. 213.)

Beyond portraying the effects of unemployment, the book proposes changes to how the government approaches unemployment. The class and gender lessons provide critical guideposts. The first policy change is transparency, ensuring that those who lose a job know the benefits for which they qualify. Damaske also recommends complete wage replacement for those who earned the minimum wage, noting the importance of those wages to the former worker’s family, as well as to the former worker, who is not, then, forced back to work too quickly.

The two proposals explicitly focused on the family are expanded health care and childcare credits. In arguing for increased government support, she recommends that high quality childcare – that is also affordable – be expanded and provided even after a job loss; indeed, such child care along with parental leave results in women earning more when they are able to work. (P. 222.) That recommendation is, of course, in line with President Biden’s national care infrastructure plan; the child care tax credit is expected to cut child poverty almost in half and will have the other benefits that Damaske identifies.

While the book provides significant insights into families, gender, and unemployment, it does have limitations. Damaske recruited participants through the Pennsylvania CareerLink Center (anyone deemed eligible for unemployment must attend a meeting at the Center that focuses on how to get a new job (Pp. 21-22)): this is not a national sample. Moreover, as she notes, her sample is less racially diverse than the national population. (P. 244.) And, of course, it is difficult to generalize based on 100 participants; Damaske supplements her research with that of other scholars ranging from Aliya Rao to Daniel Carlson to Amanda Miller to Kathryn Edin, all of whom have engaged in important and complementary work on the family.

Ultimately, Damaske shows that unemployment’s impact on the family is shaped by a person’s gender and class, and that changing how we approach unemployment will have a profound impact on the family and gender roles.

Cite as: Naomi R. Cahn, Toiling–and Not Toiling: Law, Gender, Class, and Unemployment, JOTWELL (July 27, 2021) (reviewing Sarah Damaske, The Tolls of Uncertainty: How Privilege and the Guilt Gap Shape Unemployment in America (2021)), https://family.jotwell.com/toiling-and-not-toiling-law-gender-class-and-unemployment/.

Bringing the Nineteenth Amendment Home

Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J.F. 450 (2020).

The Nineteenth Amendment promised to transform the Constitution as it did the content of equal citizenship. It has, however, done neither. Instead, as Reva Siegel explains in The Nineteenth Amendment and the Democratization of the Family, we narrowly understand “the Nineteenth Amendment as a rule prohibiting government from discriminating on the basis of sex in determining who can vote.” (P. 451.) This, Siegel compellingly argues, is an impoverishment of what the Nineteenth Amendment was meant to accomplish, and a depletion in how we define equality. The Nineteenth Amendment wrought change to the Constitution “not simply by adding voters, but by democratizing the family so that women could represent themselves in government.” (P. 451.) The quest for the vote, according to Siegel, was fundamentally a quest to restructure women’s role within the family.

It may come as no surprise that women’s participation in the polity – by eliminating the concept of virtual representation by the husband and head of the household – directly challenged traditional family roles. But lost to history is how the right to vote further implicated structural questions about voluntary motherhood, equal remuneration, and the valuation of work performed both within and outside of the household. We no longer recognize access to contraceptives, or joint property in marriage, as essential to the franchise. Nor do we incorporate the family into the constitutional framework of the Nineteenth Amendment. As such, “the history this Essay explores,” Siegel writes, “has played little role in shaping our law.” (P. 454.) Siegel addresses this erasure by reconstructing the debate over equal citizenship that the suffrage campaign began and examining the various ways recovering this forgotten history can impact our interpretation of the Constitution. In revealing exactly how the Nineteenth Amendment failed to resolve the problem of women’s access to full citizenship, Siegel shows us that it still could.

Siegel details various examples of arguments raised by suffragists in the era immediately following the Nineteenth Amendment’s passage to establish how diminished our conversations surrounding equality have become. Take Crystal Eastman, a graduate of New York University Law School, a companion of Charlotte Perkins Gilman in Greenwich Village’s radical feminist Heterodoxy Club, and a leader of the women’s movement post-ratification. Eastman’s goal was, simply, “[t]o bend gender outside and inside the family.” (P. 468.) To those ends, she proposed challenging not only sex-based exclusions from professional life, but also distending gender roles so that “‘[i]t must be womanly as well as manly to earn your own living’” as “‘it must be manly as well as womanly to know how to cook and sew and clean and take care of yourself.’” (P. 469.) Eastman lamented the reality that “‘breadwinning wives had not yet developed home-making husbands.’” (P. 469.)

Eastman understood that a woman’s position as a mother was central to her plea for equality, as it was to her ability to participate at work. In particular, she argued that women should have the ability to elect motherhood and to control the size of their families, conditions which were “‘as elementary and essential as ‘equal pay.’’” (P. 469.) If a woman decided to raise children, then she should receive remuneration from the government, in recognition of the public service she was providing. (P. 470.) Eastman conceptualized the family as a public institution that warranted public support. Distributing the responsibilities of being a wife and a mother beyond the figure of a single individual was the only way to guarantee economic independence and gender equality.

The vision of the family that triumphed was, however, strictly private, with the wife and mother at its helm; it would remain divorced from the polity, the public, and any constitutional understandings of equality. This was so despite the continuation of the debates into the 1970s, which took shape in the Strike for Equality, organized fifty years after the Nineteenth Amendment’s ratification. The strikers believed that the quest for equal citizenship went beyond votes and “required transformation of the conditions in which women bear and rear children.” (P. 475.) In addition to the Equal Rights Amendment, and equal opportunities in jobs and education, they sought full access to abortion and free around-the-clock daycare centers. (P. 475.) Siegel reminds us that there was national consensus on this final point, and childcare legislation in the form of the Comprehensive Child Development Act was enacted by Congress – not once, but twice. It was, however, vetoed by the President – first by Nixon in 1971 and then by Ford in 1976. (P. 477.) The government’s refusal to provide childcare ensured that support would remain housed within existing family structures.

The standard narrative surrounding the passage of Nineteenth Amendment is currently stuck in the tenor of “an attitudinal account,” which tells the story of having successfully overcome prejudice. (P. 456.) Siegel argues that the Amendment’s passage should also be understood as a tale of “institutional design.” (P. 456.) In opening the franchise, the government authorized individuals to represent themselves, “emancipating some persons from the control of others, as it recognized slaves, servants, and wives as independent in the eyes of the law.” (P. 456.) Siegel turns to the Fifteenth Amendment, and the Reconstruction Amendments more generally, to both guide and implement this institutional interpretation. If we were to read the Nineteenth Amendment’s political history into its text the way we read the history of slavery and segregation into the Fifteenth Amendment, then the family would clearly emerge as “a locus of law, struggle, and power, having a constitutional history like all other important institutions of our constitutional republic.” (P. 457.) On a more granular level, cases involving pregnancy, contraception, and employment would be refracted through an analysis of whether the legal rule “preserve[s] the principle of men’s household headship” or instead “reorganize[s] family relations on the principles of women’s co-headship, equality, and independence.” (P. 485.) Reframing the Nineteenth Amendment as a question of institutional design would create dynamic synergies that could reorient the whole of equal protection law.

Siegel’s proposed reading continues the analogy between race and sex that was successfully adopted by Pauli Murray, Dorothy Kenyon, and, eventually, Ruth Bader Ginsburg: “Just as the constitutional disestablishment of slavery and segregation orients race-discrimination law, so too can disestablishment of male household headship—intersectionally understood – orient sex-discrimination law.” (P. 484.) The institutional dimension of the Nineteenth Amendment ensures that race and sex also intersect. Rather than paper over existing distinctions, Siegel notes that suffragists split, both along and within racial lines, on whether to support a Fifteenth Amendment that did not include the right to vote for women. (P. 461-62.) Most egregiously, the Nineteenth Amendment failed to enfranchise all women. (P. 457.) Addressing such intersectional differences reveals the varied barriers to even forming a family in the first instance: “while controlling the timing of conception promises independence for many, there are many who focus on freedom from coercive sterilization, and yet others who focus on equal parental recognition and access to the means of family formation.” (P. 487.)1 Ultimately, paying heed to intersecting inequalities is the only way for all women to participate fully in public life.

The staying power of the piece, what makes it veritably haunting, is showing exactly how what we exclude, what we fail to see, has the capacity to constrain and truncate discourse in ways that prevent any critical analysis from taking place. Family law scholars are accustomed to statements about what is obvious, natural, or otherwise self-evident.2 We must therefore be carefully attuned to where assertions about the way things are disguise contested opinions about how they should be.3 The specific danger Siegel alerts us to lies in not seeing what they once were, so that we remain blind to what they could yet become.

  1. Important coalitions nonetheless emerged – Siegel writes about the work of Frances Watkins Harper, a leading feminist and abolitionist, who crafted “intraracial and inter-racial alliances” and whose project of “home protection” encompassed issues spanning sexual abuse to lynching. (P. 465.) For a review centrally addressing the role Native, African-American, Asian, and Latina women played in the history of voting rights in America see Ann E. Tweedy, Uncovering the Little-Known History of Suffragists of Color, JOTWELL (March 25, 2021) (reviewing Cathleen D. Cahill, Recasting the Vote: How Women of Color Transformed the Suffrage Movement (2020)).
  2. “The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother. This is the law of the Creator. And the rules of civil society must be adapted to the general constitution of things, and cannot be based upon exceptional cases.” Bradwell v. Illinois, 83 U.S. (16 Wall.) 130, 141-42 (1872) (Bradley, J., concurring).
  3. Reva Siegel has consistently led the way – she has dismantled the doctrine of marital privacy to expose how it perpetuates marital prerogative, Reva B. Siegel, “The Rule of Love”: Wife Beating as Prerogative and Privacy, 105 Yale L.J. 2117, 2119 (1996); she has denuded the language of love to identify how it conceals a law steeped in status relations, Reva B. Siegel, The Modernization of Marital Status Law: Adjudicating Wives’ Rights to Earnings, 1860-1930, 82 Geo. L.J. 2127, 2211 (1994); she has detailed how reasoning about “real” differences masks judgments about the proper social roles the sexes ought to occupy, Reva Siegel, Reasoning from the Body: A Historical Perspective on Abortion Regulation and Questions of Equal Protection, 44 Stan. L. Rev. 261, 265 (1992).
Cite as: Albertina Antognini, Bringing the Nineteenth Amendment Home, JOTWELL (June 29, 2021) (reviewing Reva B. Siegel, The Nineteenth Amendment and the Democratization of the Family, 129 Yale L.J.F. 450 (2020)), https://family.jotwell.com/bringing-the-nineteenth-amendment-home/.

Update of Jotwell Mailing Lists

Many Jotwell readers choose to subscribe to Jotwell either by RSS or by email.

For a long time Jotwell has run two parallel sets of email mailing lists, one of which serves only long-time subscribers. The provider of that legacy service is closing its email portal next week, so we are going to merge the lists. We hope and intend that this will be a seamless process, but if you find you are not receiving the Jotwell email updates you expect from the Family Law section, then you may need to resubscribe via the subscribe to Jotwell portal. This change to email delivery should not affect subscribers to the RSS feed.

The links at the subscription portal already point to the new email delivery system. It is open to all readers whether or not they previously subscribed for email delivery. From there you can choose to subscribe to all Jotwell content, or only the sections that most interest you.

The Roads Not Taken in the Forest of Family Trees

In Queering Family Trees, Sandra Patton-Imani explores parenthood at the intersection of race, class, and sexual orientation during the period from the 1990s until the Supreme Court’s landmark decision in Obergefell v. Hodges.1 This short period of time witnessed dramatic shifts regarding same-sex relationship recognition and adoption at the local, state, and federal levels, culminating in the legalization of same-sex marriage. In Patton-Imani’s exploration, same-sex marriage is only one fragment of the larger story of family policy, which involves welfare, immigration, and adoption policies.

Patton-Imani’s historical exploration is unique in that it is built on over one hundred ethnographic interviews with African American, Latina, Native American, Asian American, and white lesbian mothers living in different states, in a range of socioeconomic circumstances, all of whom were in the process of building their families during this time period. Through these women’s narratives, we learn of the varied ways through which they formed their families, faced their daily challenges, and struggled to protect their family relationships and to gain benefits and rights that heteronormative families routinely enjoy.

Thus, for example, the book presents different stories of family-making through adoption that include relative adoption, transracial adoption, and transnational adoption. Kelly and Sam, a white middle-class couple, share the discomfort they felt at a Santa Clara County Child Welfare recruitment booth at San Jose Pride, where social workers identified certain children as “low risk,” meaning that because their birth parents—most often single mothers—were unlikely to be able to regain custody, the children were “free” for adoption. This “neo liberal consumer logic” and terminology drove Kelly and Sam to forgo adoption through the foster care system and to resume their fertility treatments (which they could afford given their economic status). (Pp. 131-32.)

Mischa and Kimberly, another white middle-class couple, share the difficulties of bonding with foster children they hoped to adopt but who returned to their biological parents, went to live with relatives, or moved to a different foster family in another jurisdiction. The couple eventually adopted transnationally (from Haiti and Cambodia) and they acknowledge with sensitivity that extreme poverty was the primary reason their children’s birth parents were unable to care for them. (Pp. 99-101.)

Betty and Edna, a working-class Hispanic couple, tell a very different story of family-making through adoption. This couple adopted two children born extramaritally to Betty’s niece. After the niece relinquished the first child for adoption, Betty and Edna struggled financially to complete the formal adoption process, with the result that only Betty legally adopted the child. When Betty’s niece gave birth to another child a few years later, the child was placed in a foster home with a white, heterosexual, middle-class married couple before Betty and Edna arrived at the hospital. It took two months of wrangling with welfare authorities for the couple to obtain custody of the child. Again, only Betty legally adopted the child due to financial constraints. (Pp. 186-88.)

These stories provide compelling accounts of power inequalities as well as significant gaps in the protections available for certain families as a result of socioeconomic status, race and ethnicity, and gender, and especially the intersection of these factors. Yet, Patton-Imani emphasizes that none of these personal stories should be considered “representative.” Rather, she offers the stories as allegories, that is, as normative lenses through which larger sociopolitical narratives can be critically scrutinized.

Patton-Imani’s study makes powerful use of metaphor. A notable example is when she likens her interviewees’ families to grafted trees to illustrate the mothers’ inescapable engagement with prevailing templates for legitimate and normative families. The grafting process joins two or more plants into one and provides a strong metaphor for the interplay among biology, genetics, and nurture. Once the shoot of one tree is grafted onto the rootstock of another, it is nurtured by the rootstock, and the resulting fruit reflects the contributions of both original plants. As Patton-Imani emphasizes, however, the power of the grafted tree metaphor is that it not only illustrates the combination of plant genetics and nurturing to produce fruit, it also draws attention to the power that is involved in grafting. In the words of Patton-Imani: “Whose hand splices the branches and ties them together? Whose social vision shapes the planting and care of the orchard? Who waters and cares for fragile young shoots?” (P. 77.) “[S]tories about grafted trees make power relations visible, allowing us to see whose stories are excised from legitimate history, and how that sleight- of- hand is accomplished.” (P. 248.) Sometimes the exercise of power is easy to detect, such as when the state’s welfare system removes children from their birth parents and places them in foster care or adoption. In other instances, less palpable societal forces influence family-making in unseen ways that may lead, for example, to a scarcity of sperm donors of color – a scarcity noted by some of the interviewed mothers who were interested in such sperm.

The mothers’ narratives, as woven together and analyzed by Patton-Imani, reveal that at each crossroads in the brief and spotty history since the 1990’s, the road taken provided openings for more privileged LGBTQ families (whether through whiteness or economic status). Poor lesbian mothers of color were left behind, just as they had been left behind in the past: it is not only the most recent marriage-centered turn of the road in Obergefell that disadvantaged poor and non-white LGBTQ families.

Patton-Imani’s historical narrative-based exploration forces us to think about the roads not taken, the intersecting side roads of welfare, immigration, adoption, and marginalized families, from the 1990’s through Obergefell, whether at the local, state, or federal level. These alternative roads might have been more diverse, more inclusive, and addressed structural and economic barriers rather than offering more “choice,” which disadvantaged families often lack the financial means to exercise.

In identifying the roads not taken, Patton-Imani does not offer any specific legal path for change or concrete policy suggestions; she leaves that to us, legal scholars and activists. She does mark the desired end of the road, which is to secure the rights and interests of those most disadvantaged. She also suggests that building coalitions among the marginalized is the approach to take. Here, too, she uses trees as a metaphor, this time invoking redwoods, which enjoy majestic size and longevity despite their relatively shallow roots. It is the roots’ lateral expansion and interconnection that creates a common root system that supports them all and sustains them even during a storm.

  1. 576 U.S. 644 (2015).
Cite as: Ayelet Blecher-Prigat, The Roads Not Taken in the Forest of Family Trees, JOTWELL (May 25, 2021) (reviewing Sandra Patton-Imani, Queering Family Trees: Race, Reproductive Justice, and Lesbian Motherhood (2020)), https://family.jotwell.com/the-roads-not-taken-in-the-forest-of-family-trees/.

Restating the Law of Nonmarital Contracts

Albertina Antognini, Nonmarital Contracts, 73 Stan. L. Rev. 67 (2021).

Millions of Americans are in cohabiting relationships marked by varying degrees of intimacy and dependency. Although at least some of these relationships are functionally similar to marriage, the law has had a limited role in regulating them. Nonmarital partners are ineligible for benefits like family leave, Social Security, favorable tax treatment, and more. Moreover, marital property rules do not apply to them, meaning that economically vulnerable partners may find themselves with nothing at the relationship’s end. In most states, one legal tool available to nonmarital partners is contract. Since the California Supreme Court’s Marvin v. Marvin decision over forty years ago, the vast majority of jurisdictions have allowed partners in intimate relationships to enter into contracts governing property, as long as sex is not consideration for the contract. The problem, most scholars observe, is that the vast majority of couples either do not bother to make agreements in the first place or do not express them in the form of a concrete exchange. Taking courts at their word, scholars assume that courts will enforce nonmarital contracts when they find them.

Albertina Antognini’s latest article, Nonmarital Contracts, disrupts this account. Through a painstakingly detailed examination of the entire universe of cases involving express contracts between nonmarital partners, Antognini shows that courts very rarely enforce agreements between opposite-sex partners exchanging domestic labor for money or other property, the very type of exchange that Marvin theoretically greenlighted. Thus, contract fails to make much of an impact, but for a different reason than is commonly assumed: the very courts that proclaim a right to contract in theory decline to enforce them in reality.

Antognini’s analysis is based on a universe of approximately 120 reported cases that involve claims between nonmarital partners based on an express contract, culled from an initial sample of thousands of false positives.1 The relatively small number of cases allows Antognini to engage every single one without cherry-picking. And indeed, they cannot all be harmonized, a fact that ultimately contributes to a richer set of insights.

Antognini identifies two notable fault lines in this body of cases. First, courts are much more likely to enforce claims between opposite-sex partners predicated on the exchange of property; claims based on domestic services are rarely enforced. Second, contract claims between same-sex couples, many of which involve domestic services, fare quite well in comparison to contract claims between opposite-sex couples.

Courts provide various reasons not to enforce contracts involving domestic services. Some courts struggle to disentangle domestic services from the sexual nature of the relationship, treating the services as an extension of the sex that is also taking place. Some courts presume that the party performing the domestic services offered them out of love and affection, or simply performed them as part of the give-and-take of the relationship, rendering them gratuitous. Other courts find promises to support or take care of the partner providing the domestic services too vague to be enforced.

Not all claims fare so poorly, however. These same concerns—of intertwined sexual services, gratuitousness, or vagueness—are not present when the one partner brings a claim based on tangible property like earnings, shared expenses, or rent. Antognini shows that when partners attempt to recover their share of money spent maintaining the household, or for financial contributions to property that the partners shared during the course of the relationship, courts have easily set aside the sexual nature of their relationships.

Courts have also been much more willing to enforce contracts involving domestic services between same-sex couples. A common assumption in that context is that the parties turned to contract because of their inability to marry, and thus their intentions should be honored (which leads one to wonder whether future claims brought by same-sex partners who could have married will face greater resistance).2

This descriptive work suggests that many scholars have been too quick to take the courts at their word, and perhaps too sanguine about the availability of contract law as a tool to define the legal parameters of nonmarital relationships. Yes, contract law allows partners to exchange property for property, but it renders much of the work that goes on in a relationship—work traditionally performed by women—market-inalienable. From this state of affairs, Antognini draws several compelling insights. She sees in the devaluation of domestic work a preservation of coverture in contract. Within marriage, contract doctrine prevents wives from entering into agreements regarding domestic services, effectively ensuring that any labor they perform within the home will be for the benefit of others. (Pp. 93-94.) But contract doctrine, as reflected in the decisions involving nonmarital partners, extends these effects to people outside of marriage, further articulating the divide between the market and the family. As Antognini puts it, “status is still driving these decisions—in that courts are making judgments about the nature of intimate relationships based on the content supplied by marriage—and limiting contract accordingly.” (Pp. 142-43.) Indeed, based on Antognini’s comprehensive description of the case law, it is hard to unsee the role that marriage plays in determining the types of contract terms that courts will enforce.3

Antognini argues that the status quo is unacceptable because, “in addition to being confused and contradictory, . . . courts are concealing judgments about relationships behind the guise of contract.” (P. 145.) Thus, she pushes courts and scholars to choose between two options for reform: stating clearly that contract is not available for domestic services or ensuring that parties are actually able to contract for home labor. The first option has the benefit of clarity and would allow partners to arrange their legal relations based on the law as it actually operates. However, it would perpetuate “the inequities imposed on the homemaker and the devaluation imposed on homemaking.” (P. 147.) Enabling partners to contract for household work, in contrast, would provide a mechanism to value such work, bridging the spheres of the home and the market.

It’s difficult to imagine a world in which domestic labor has some sort of compensable value, which probably goes a long way to explaining the judicial decisions that Antognini critiques. Spouses do not typically provide an accounting of the different tasks they perform, and courts are not accustomed to assigning market rates to those tasks, nor answering questions like why childcare might be worth a certain amount to an average-earning spouse but much more to a high-earning spouse. And as Antognini points out, it is difficult to imagine a contract law that does not interpret the parties’ commitments through the lens of what courts deem to be objectively reasonable, a lens that will be skewed by the judiciary’s own assumptions about the value and content of marriage. Even for open-minded judges, the pull of marriage will be hard to escape. Left to their own devices, partners themselves structure their relationships unimaginatively. That most partners in the cases at bar simply try to recreate marital-like arrangements (unenforceable) or engage in specific transactions related to joint financial contributions (enforceable) seems to follow predictably from a lack of other options. This suggests, as Antognini herself admits, that merely enforcing more contracts between nonmarital partners will not necessarily result in widespread change.

One article cannot possibly address all of the implications that follow from the realization that the law of nonmarital contracts is not what courts have said it is. In Nonmarital Contracts, Antognini provides plenty of food for thought, raising tantalizing questions that beg answers. Scholars of nonmarriage will surely be contending with the issues Antognini has raised for quite some time.

  1. Antognini excludes claims based on implied contracts, which one assumes would be treated with even more skepticism by the courts, as well as cases arising after the death of one of the partners.
  2. All of the cases except one were decided before same-sex marriage was legal within the relevant jurisdiction, and in that exceptional case, the relevant conduct occurred before legalization. See Appendices B.1-4.
  3. That same-sex couples were clearly not “marriage material” before the legalization of same-sex marriage saved their contracts from the same fate as opposite-sex couples’ agreements. Yet marriage was still shaping contract—by allowing those agreements to be enforced—in its absence.
Cite as: Kaiponanea Matsumura, Restating the Law of Nonmarital Contracts, JOTWELL (April 27, 2021) (reviewing Albertina Antognini, Nonmarital Contracts, 73 Stan. L. Rev. 67 (2021)), https://family.jotwell.com/restating-the-law-of-nonmarital-contracts/.

The Shadow of Abortion

Melissa Murray, The Symbiosis of Abortion and Precedent, 134 Harvard L. Rev. 308 (2020).

In her insightful Comment on June Medical Services L.L.C. v. Russo1 in the Harvard Law Review’s Supreme Court Issue, Professor Melissa Murray uncovers the “complicated and constitutive relationship between the Court’s approach to stare decisis and its abortion-related jurisprudence.” (P. 312.) She shows not only that stare decisis principles structure the Court’s abortion jurisprudence, but also that conflict over the abortion right shapes the Court’s approach to stare decisis. In this sense, Murray persuasively demonstrates how abortion casts a long shadow over other bodies of law, not least of which is the trans-substantive question of stare decisis.

Murray’s perspective invites us to appreciate how the abortion conflict provides a template for other struggles, both inside and outside the courts. Without saying so explicitly, her analysis helps us to make sense of ongoing contestation over the meaning and reach of Obergefell v. Hodges,2 the Supreme Court’s 2015 landmark decision recognizing same-sex couples’ constitutional right to marry. Even as same-sex couples exercise the right to marry nationwide, opponents of LGBTQ equality are seeking to narrow and limit the decision’s reach—without asking the Court to expressly overrule it. They rely, often expressly, on the campaign against abortion rights as a model.

Murray analyzes how the Court’s abortion decisions—including most prominently Planned Parenthood of Southeastern Pennsylvania v. Casey­3—constitute “precedent on precedent” (P. 329.) These decisions “shadow all of the Court’s efforts to define and observe the requirements of stare decisis.” (P. 312.) More importantly, they furnish “a blueprint for narrowing, limiting, and eventually overturning earlier precedents.” (p. 330)—a dynamic she terms “transformation-through-preservation,” in a play on Professor Reva Siegel’s famous preservation-through-transformation concept.4 (P. 335.)

Murray extensively documents this blueprint in action in a number of doctrinal areas, ranging from the Establishment Clause to the Sixth Amendment, from campaign finance reform to labor law. In the examples on which Murray focuses, abortion jurisprudence “provides a template for undermining—and overruling—precedent.” (P. 337.) And yet, in the abortion context itself, Roe v. Wade5 remains good law. That is, the very body of law that has supplied the interpretive tools to overturn precedent in other areas continues to withstand attempts at overruling. In this sense, abortion jurisprudence also provides a blueprint for limiting protected rights without overruling precedent. It is here that the abortion struggle supplies a template for conflict over the rights of same-sex couples.

The hollowing-out of Roe has been documented by countless scholars and commentators. In Casey, the Court affirmed Roe as precedent but also reformulated the standard of review in ways that weakened the abortion right. As Murray argues, “by authorizing states to legislate abortion rights out of existence, Casey overruled much of Roe’s substance, substantially curtailing access to abortion for most women.” (P. 315.) In Gonzales v. Carhart,6 the Court upheld ­­­­­the federal Partial Birth Abortion Act without expressly repudiating the precedential status of Roe, Casey, or Stenberg v. Carhart, an earlier decision striking down a similar state law.7 As Justice Ginsburg observed in dissent, Gonzales paid lip service to principles of stare decisis as it “chip[ped] away at a right declared again and again by this Court.”8

June Medical stands as the latest example in this long line of decisions. The Court struck down a Louisiana law effectively the same as the Texas law the Court had struck down just four years earlier in Whole Woman’s Health v. Hellerstedt.9 Of course, the Court’s composition had changed in the intervening period. Chief Justice Roberts, who had dissented in Whole Woman’s Health, now provided the fifth vote to strike down the Louisiana law in June Medical. The four-justice plurality analyzed the law under the same standard articulated by the majority in Whole Woman’s Health—weighing the law’s purported health benefits against the burdens the law imposed on women seeking abortion. Concurring in the result based on principles of stare decisis, Chief Justice Roberts rejected the “balancing” approach adopted by the plurality and the Whole Woman’s Health Court. As Murray contends, “Chief Justice Roberts took a dual-pronged approach—reaffirming Whole Woman’s Health for the purpose of distinguishing it and, in the process, implicitly overruling it.” (P. 325.) As importantly, while professing loyalty to Casey, he further restricted the meaning of that landmark decision.

This strategy is frightening not only for proponents of abortion rights but also for proponents of other rights relating to sexuality, reproduction, and the family. Will the abortion decisions provide a model for limiting the rights of same-sex couples without overruling Obergefell?

In the wake of Obergefell, Arkansas refused to issue birth certificates to married same-sex couples listing both women as parents of the child, even though the state listed both spouses as parents in married different-sex couples, regardless of whether the husband was the child’s biological father. In 2017, the Court in Pavan v. Smith rejected Arkansas’s narrow reading of Obergefell.10 This was clearly the right result. Obergefell itself included “birth . . . certificates” as one of the critical “government benefits” that states “confer on all married couples.” Yet, the Pavan decision was not unanimous. Justices Gorsuch, Alito, and Thomas dissented, expressing sympathy for the state’s attempt not simply to narrow but contravene precedent, reasoning that “nothing in Obergefell indicates that a birth registration regime based on biology . . . offends the Constitution.”

Those seeking to undermine Obergefell have not given up. In 2020, they raised the question again, this time by virtue of Indiana’s refusal to issue birth certificates listing both women in a married same-sex couple as parents. The Court denied cert. in Box v. Henderson. But opponents of same-sex marriage will continue to raise questions of birth registration and parentage that implicate the meaning of Obergefell. Here, key abortion decisions provide a model, illustrating how to simultaneously profess loyalty to and undermine a landmark precedent.

Conflicts over religious exemptions from antidiscrimination mandates also invite judicial attempts to limit the reach of Obergefell. This term, in Fulton v. City of Philadelphia, the Court is considering whether a Catholic social services agency has a right to a city contract for child-placing services even though the agency refuses to abide by the city’s nondiscrimination requirements. The agency contends that its religious view of marriage prohibits it from licensing same-sex couples as foster parents. This case, one of many of its kind, threatens to deprive married same-sex couples of rights that married different-sex couples take for granted.

Disputes over parentage and religious exemptions do not exhaust the cases seeking to limit Obergefell. Consider, for example, the years-long challenge to Houston’s extension of benefits to the same-sex spouses of city employees. The marriage right secured by Obergefell would mean very little if the government could withhold benefits from same-sex spouses that it furnishes to different-sex spouses. And yet cases of this kind have persisted.

Up to this point, the Court has stopped short of restricting Obergefell in ways that mirror the abortion struggle. But opponents of LGBTQ equality continue to press their cause and do so with a seemingly more hospitable Court.

This strategy of limiting—neutering, in Murray’s words (p. 317)—precedent without overruling appears more palatable to the Court when the substantive issue raised is one that has inspired longstanding, fierce, and ongoing society-wide debate. As Murray observes, “overruling [Roe] would invariably expose the Court to claims of partisanship and political opportunism.  And this, in turn, helps explain why the abortion right has, over time, become increasingly narrow.” (P. 349.)

From the perspective of the democratic legitimacy of our constitutional order, this seems upside down. What does the ordinary citizen think when a decision like June Medical comes down? “The Supreme Court Just Ruled 5-4 to Protect Abortion Rights,” a headline read at the time. Is there any indication that, as Murray explains, the Chief Justice’s “selective approach to stare decisis transformed the meaning—and precedential value—of Whole Woman’s Health, as well as the standards by which abortion restrictions will be judged going forward”? (P. 312.) As Reva Siegel puts it in a forthcoming article on June Medical, “It is one thing to reverse Roe and Casey; it is another to pursue that aim through forms of rational basis.”11

The same fear exists in the LGBTQ context. While the increasingly conservative composition of the Court has led some to worry about Obergefell’s overruling, the more real concern is that the Court will chip away at Obergefell—limiting not only its precise protections (such as “the constellation of benefits that the States have linked to marriage”) but also its loftier commitments to protect LGBTQ people from laws that “serve[] to disrespect and subordinate them.” With abortion jurisprudence as a blueprint, it may do so without ever provoking headlines that alert citizens to the deprivation of rights at stake. In this sense, practices of stare decisis being forged by justices hostile to abortion rights pose a profound crisis—not only for the citizens who depend on the rights being adjudicated, but also for the legitimacy of constitutional adjudication in our democracy.

  1. 140 S. Ct. 2103 (2020).
  2. 576 U.S. 644 (2015).
  3. 505 U.S. 833 (1992).
  4. Reva Siegel, Why Equal Protection No Longer Protects: The Evolving Forms of Status-Enforcing State Action, 49 Stan. L. Rev. 1111 (1997).
  5. 410 U.S. 113 (1973).
  6. 550 U.S. 124 (2007).
  7. 530 U.S. 914 (2000).
  8. 550 U.S. at 191.
  9. 136 S. Ct. 2292 (2016).
  10. 137 S. Ct. 2075 (2017).
  11. Reva B. Siegel, Why Restrict Abortion? Expanding the Frame on June Medical, 2020 Sup. Ct. Rev. (forthcoming 2021) (manuscript at *41).
Cite as: Douglas NeJaime, The Shadow of Abortion, JOTWELL (April 12, 2021) (reviewing Melissa Murray, The Symbiosis of Abortion and Precedent, 134 Harvard L. Rev. 308 (2020)), https://family.jotwell.com/the-shadow-of-abortion/.

A Ringing Endorsement of Lawyers, and the Most Important Development in Child Protection Law

Lucas A. Gerber, et al., Understanding the effects of an interdisciplinary approach to parental representation in child welfare, 116 Child. & Youth Serv. Rev. 105163 (2020), available at SSRN.

Two empirical studies demonstrating the impact of vigorous family defense legal work on child protection cases bookended the 2010s.  In 2012, Mark Courtney and Jennifer Hook found that cases in which a specialized interdisciplinary law office (ILO) represented parents had faster reunifications, guardianships, and adoptions than similar cases with different parental representation, though it did not explore how those results were obtained.1  In 2019, Lucas Gerber, Yuk Pang, Timothy Ross, Martin Guggenheim, Peter Pecora, and Joel Miller found that, compared to solo and small office practitioners, ILOs in New York City hastened reunification and guardianships for their clients, leading to 118 fewer days in foster care per child on average, without any negative child safety outcomes.2

The New York City study also led to a 2020 qualitative study3 offering insight into what made these specialized ILOs so impactful and helping define what makes for high-quality parent representation (known as “family defense”). The answer: traditional lawyering, done aggressively and in collaboration with an interdisciplinary team.

Gerber et al. compared cases handled by interdisciplinary law offices where lawyers specialized in family defense and collaborated with staff social workers and parent advocates with similar cases handled by solo and small office practitioners who generally had much experience but lacked the ILOs’ non-lawyer supports. After documenting the empirical differences in 2019, they interviewed parents who had a child protection case filed against them, lawyers from both models of family defense, lawyers for other parties in these cases, and judges, designed to measure what ILO attorneys did differently from solo and small office practitioners. The ILO lawyers demanded more formal procedures for their clients, pushing back against an ethos that downplayed the need for such advocacy – an ethos that commentators have long observed in family courts.4 ILO lawyers advocated more aggressively, filing more motions and insisting upon more evidentiary hearings than other lawyers.  In addition, ILO lawyers better met basic hallmarks of quality legal representation – especially frequent client contact and preparation for all court hearings.

ILO lawyers also leveraged their interdisciplinary teams, which represented clients in out-of-court case conferences and then helped clients find the services they need to follow these plans and regain custody of their children. Notably, Gerber et al. describe even this social work in terms which made clear their status on their clients’ team. Non-lawyer members of the team advocated for clients at case conferences with agency representatives, ensuring case plans were individualized and not more burdensome than necessary. When they helped clients obtain social services, they empowered clients to find services they want and free themselves of dependency on CPS agencies.

What to take from the 2020 qualitative study? First, Gerber et al. offer a ringing endorsement of lawyers acting in their adversary role as essential to the rule of law and functioning of any legal system, even one (like family courts) historically designed to operate less adversarially. This study throws cold water on the notion that traditional lawyering prevents systems from doing what they need to do. (Indeed, the authors report the views of some child protection agency attorneys that vigorous family defense merely slows the process down through unnecessary litigation.) The 2019 study empirically rejected this view, and the 2020 follow-on contribution explains how strong adversarial lawyering helps family courts act with greater accuracy and with limiting interventions into individual liberty.

Second, and more pointed to the next decade of work in the child protection system, the 2020 study takes a significant step toward defining the elements of high-quality family defense. America’s patchwork of state and local family defense systems now can consider how to use newly-provided federal assistance to expand or improve with a guide for what a model system looks like. That guidance is essential because family defense systems generally fall far short of the standard set by New York City ILOs. In South Carolina, where I teach, no such offices exist, and authorities are just figuring out how to ensure parents have attorneys to represent them at court hearings held days after a child is removed, and most of the nation’s family defense systems resemble South Carolina’s rather than New York City’s.

Defining high-quality family defense is particularly important now. In 2019, in perhaps the most important child protection legal development in the past decade or longer, the federal Children’s Bureau opened federal foster care funding to support the provision of legal representation and advocacy for parents.5 That dramatically expanded funding for legal services – which have largely depended on meager state and local funding – provides states the opportunity to improve their family defense models.

This opportunity begs the question – how should states improve their family defense systems? How much must those systems improve to get comparable results to those found in the New York City studies? Must they get all the way to the NYC ILOs, or is some intermediate step sufficient? The best way to answer this is through more quantitative and qualitative research in more jurisdictions like what Gerber et al. have done.

  1. Mark E. Courtney & Jennifer L. Hook, Evaluation of the impact of enhanced parental legal representation on the timing of permanency outcomes for children in foster care, 34 Child. & Youth Services Rev. 1337 (2012).
  2. Lucas A. Gerber, et al., Effects of an interdisciplinary approach to parental representation in child welfare, 102 Child. & Youth Services Rev. 42 (2019).
  3. The full list of authors for the 2020 contribution is Lucas A. Gerber, Martin Guggenheim, Yuk C. Pang, Timothy Ross, Yana Mayevskaya, Susan Jacobs, and Peter J. Pecora.
  4. E.g. Melissa L. Breger, Making Waves or Keeping the Calm?: Analyzing the Institutional culture of Family Courts Through the Lens of Social Psychology Groupthink Theory, 34 Law & Psych. Rev. 55 (2010); Amy Sinden, “Why Won’t Mom Cooperate?”: A Critique of Informality in Child Welfare Proceedings, 11 Yale J.L. & Feminism 339 (1999).
  5. In this season of political transition, it is worth noting that this federal funding for family defense came from the Trump Administration – and that this is one area where the Biden Administration should continue changes enacted by its predecessor.
Cite as: Josh Gupta-Kagan, A Ringing Endorsement of Lawyers, and the Most Important Development in Child Protection Law, JOTWELL (March 26, 2021) (reviewing Lucas A. Gerber, et al., Understanding the effects of an interdisciplinary approach to parental representation in child welfare, 116 Child. & Youth Serv. Rev. 105163 (2020), available at SSRN), https://family.jotwell.com/a-ringing-endorsement-of-lawyers-and-the-most-important-development-in-child-protection-law/.

A Radical, Subaltern Chorus: Saidiya Hartman’s Album of Rebellious Young Black Women

Saidiya Hartman opens her powerful and lyrical Wayward Lives, Beautiful Experiments: Intimate Histories of Social Upheaval with an epigraph from Harlem Renaissance author Nella Larsen’s Quicksand: “She was, she knew, in a queer indefinite way, a disturbing factor.” As I read Hartman’s brilliant narrative recreation of the voices, words, and intimate lives of “young black women,” at the turn of the twentieth century, as they sought “to create autonomous and beautiful lives, to escape the new forms of servitude awaiting them, and to live as if they were free” (P. xiii), another Harlem Renaissance novel came to mind: Jessie Redmon Fauset’s Plum Bun: A Novel Without a Moral (1929). The desire to live free also preoccupies Angela Murray, the young Black woman whose own intimate history and experiments in living are at the center of Plum Bun. While Murray has more economic and family resources and class privilege than the young Black women whose lives Hartman makes palpably and poignantly real to readers, this fictional heroine and these women alike perceive the bar that “the color line” poses—at every turn— to living “as if” free. “Freedom!” is the most frequent “note” in the “melody of living” of which Angela dreams, and she perceives that “[c]olour or rather the lack of it seemed . . . the one absolute prerequisite” to that dream life and to the “difference between freedom and fetters.” (Fauset 13, 137.)

The “fetters” created by the color line’s racial caste system constrain yet fuel the subjects of Hartman’s narrative: young Black women on a quest to rebel and “live free” in the decades between 1890 and 1935, in New York City and Philadelphia. To construct her dazzling portraits of those “wayward” lives, Hartman uses a method of “close narration” by attempting to “inhabit the intimate dimensions” of those lives and place “the voice of narrator and character in inseparable relation.” (Hartman, P. xiii) She draws on “a vast range of archival materials” to “convey the sensory experience of the city and to capture the rich landscape of black social life.” Such archival sources treat these young women as “a problem,” and include “the journals of rent collectors; surveys and monographs of sociologists; trial transcripts; slum photographs; reports of vice investigators, social workers, and parole officers; interviews with psychiatrists and psychologists; and prison case files.” (P. xiv.) Countering that diagnosis, Hartman insists on the beauty of these experiments in trying to live free, arguing that these “young black women in open rebellion” show “utopian longings” and provide “an intimate chronicle of black radicalism;” such radicalism included “free” motherhood, intimate partnerships outside of marriage, and “queer and outlaw passions.” (P. xv.) As the archives reveal, the regulatory apparatus of governmental and quasi-governmental officials labelled and punished these young Black women for their supposed deviance from marital, gender, and sexual norms.

The expansive use of the police power to protect public morals is particularly sobering. For example, under the Tenement House Law, young Black women were surveilled and arrested “as vagrants and prostitutes” simply on a police officer’s testimony. (P. 249.) A prostitution charge could follow a young woman inviting a man into her home for a drink. Given the police invasion of Black homes in 2020, it is chillingly resonant to read of the disrespect a century ago for Black homes as private spaces: in a “jump raid,” plainclothes officers, “having identified a suspicious person and place, knocked at the door of a private residence, and when it opened, they forced their way across the threshold or they followed behind a woman as she entered to her apartment.” (P. 252.) Hartman recounts that Elinora Harris (the future Billie Holiday) and her mother were arrested in a neighborhood sweep. (P. 252.) “Walking while black” had its counterpart in the 1920s, when, as Holiday recalled, women like her mother, employed as maids or office cleaners, “were picked up on the street on their way home from work and charged with prostitution.” (P. 254.)

Hartman compellingly describes the “incredible ferocity” of this “state surveillance and police power” as “the afterlife of slavery.” (P. 256.) The young women targeted by this regulatory power perceived that such law was “designed to keep them in place,” even as they “refused to live in its clauses and parentheses.” (P. 256.) The consequences of this regulatory power fell most harshly on Black female minors: an adult woman convicted of prostitution might be sentenced to 60 days at the workhouse, but, under the Wayward Minors Act, “a girl convicted as a wayward minor might receive an indeterminate sentence of three years” at a reformatory. (P. 223.)

Racism and sexism intertwined in the application of such status offense laws: between 1882-1925, “only young women were adjudged wayward under” wayward minor laws, and Black girls were “more likely to be punished and . . . punished more harshly” than white girls. Thus, “state racism exacerbated the reach” of such laws, “marking blackness as disorderly and criminal.” (P. 225.) Hartman’s empathetic reconstruction of the desires and interrupted lives of these “wayward” girls — subject to the “civil death” of confinement in racially segregated and brutal reformatories (P. 264)— offers a valuable counterpoint to portrayals of Progressive-era efforts around juvenile justice, with the (unrealized) ideal of a prototypical wayward (white) boy in need of the counsel of a kindly judge.

As a family law scholar, I found sobering how Progressive-era social reformers in Northern cities viewed maintaining segregation and preventing “interracial intimacy or even proximity” as necessary for public health and morals: “the Girl problem and the Negro problem reared their heads” together, finding “a common target in the sexual freedom of young women.” (P. 20.) Further, vice commissions diagnosed interracial association as “disorderly” even when the purpose was “to undo the color line.” (P. 249.)

The book is a tour de force in its richly and vividly imagined narratives, which allow these young Black women hitherto “credited with nothing” and “deemed unfit for history” to emerge with agency and vision—as “radical thinkers who tirelessly imagined other ways to live and never failed to consider how the world might be otherwise.” (P. xv.) Part of that quest, Hartman persuasively shows, is the desire for aesthetic beauty and pleasure. As Professor Eddie Bruce-Jones observes, in showing “why beauty is a vital component of the narrative,” Hartman has also “created a beautiful experiment of her own.”

“The beauty of the chorus” is a phrase Hartman uses skillfully to portray the goals of women like Mabel Hampton, who left domestic service – the expected employment for young Black women – to pursue romance and adventure through joining a chorus line and dancing in cabarets, where she could shake off (however briefly) the “assault of racism.” (P. 307.) Mabel’s intimate experiments in loving other women also dared to cross the color line. Hartman places Mabel amidst a “glamorous world” of other Black women, such as Gladys Bentley, Jackie Mabley, and Ethel Waters, whose artistic lives defied gender and sexuality conventions. Mabel’s chorus line did not lead to the concert career she sought; instead, in middle age, Mabel faced the fate she evaded as a teen: entering the “Bronx slave market” for day laborers, “settled on a crate among the group of domestics as they waited for housewives from Yonkers and Westchester.” (P. 343.)

Hartman closes by envisioning a chorus of the many young women whose voices need to be heard, whose stories are terrible and beautiful, and who “transform[] the terms of the possible.” (P. 349.) The Greek etymology of “chorus,” Hartman observes, is to “dance within an enclosure.” This image of “acts of collaboration and improvisation that unfold within the space of enclosure” well conveys “the long history of struggle, the ceaseless practice of black radicalism and refusal,” and “the tumult and upheaval of open rebellion.” The chorus, with its many songs asking how to live free, “propels transformation” and is “an incubator of possibility.” This chorus so vividly presented by Hartman offers a rich resource for legal scholars seeking to expand the canon to include missing and marginalized voices in a way attentive to the intersection of race and gender discrimination. At a time when legal scholars and teachers are seeking to make antiracism and reckoning with systemic racism more central to their pedagogy and writing, Hartman’s intricate reconstruction of this unrelenting apparatus and its harsh and unjust toll on the lives of young Black women is a powerful and sobering text.

Cite as: Linda C. McClain, A Radical, Subaltern Chorus: Saidiya Hartman’s Album of Rebellious Young Black Women, JOTWELL (February 26, 2021) (reviewing Saidiya Hartman, Wayward Lives, Beautiful Experiments: Intimate Histories of Social Upheaval (2019)), https://family.jotwell.com/a-radical-subaltern-chorus-saidiya-hartmans-album-of-rebellious-young-black-women/.

Bargaining in the Shadow of (Confusing) Law: The Case of Surrogacy Contracts

Rachel Rebouché, Contracting Pregnancy, 105 Iowa L. Rev. 1591 (2020).

The literature on surrogacy regulation has recently taken a turn towards a more pragmatic understanding of the field. Scholars have attempted to describe surrogacy regulation as it already exists and analyze the different interests involved, under conditions of legal fragmentation and uncertainty.1 Rachel Rebouché’s Contracting Pregnancy is an important contribution in this vein.

The article contributes several advances to our knowledge of surrogacy contracts in action. First, Rebouché analyzes statutory developments alongside standard terms included in surrogacy contracts. Doing so allows her to notice a tension between the law on the books and the law in action. The newest statutes attempt to balance the interests of intended parents and surrogates, recognizing parentage for the former, while safeguarding the surrogate’s autonomy interests, by emphasizing that decisions about termination ultimately reside with the surrogate. Lawyers involved in the drafting process, however, regularly include language “that contradicts state efforts to level the playing field for parties.” (P. 1596.) Rebouché finds this recurrent tension between state statutes and contractual language in the areas of pre-pregnancy genetic testing, prenatal screening and testing, lifestyle decisions during pregnancy, and abortion. In other words, the contracts that lawyers draft regularly try to vest intended parents with decision-making power over these areas, against the backdrop of a statutory (and constitutional) framework that vests that authority on the surrogate.

The second contribution of the article is related to Rebouché’s attempt to understand how and why this gap occurs. Why do lawyers insist on including clauses that are likely unenforceable, either through specific performance or through damages? Rebouché pushes us to understand this practice in the context of the literature on relational contracts, in which the negotiation and inclusion of certain clauses in a contract have value as a vehicle for obtaining valuable information about the other party and building trust between parties who will need to collaborate over a period of time if the arrangement is to succeed. (P. 1631.) Noticing that surrogacy contracts may share characteristics with other types of contracts that create long-term relations and studying them under a regular contracts lens is a move against family law exceptionalism that is likely to contribute to more clarity about what this legal practice actually looks like on the ground.

A third contribution of the article is a detailed account of the role that healthcare professionals, lawyers, and surrogacy agents play in managing conflict between parties in a surrogacy contract. Rebouché’s analysis brings a legal sociological approach that is attentive to the multiplicity of incentives and motivations that may be present beyond profit, such as reputational integrity and ethics, at different stages of the process. One of the more interesting observations is that the balance of power between intended parents and surrogates shifts at different points in the process, with the surrogate gaining more of it as a pregnancy takes hold. The fertility agencies and the lawyers often associated with the agencies mediate to balance out these shifts in power, in order to maximize the chances that the arrangement will not devolve into a conflict. This often means keeping the intended parents’ micromanagement of the surrogate under control and safeguarding the surrogate’s autonomy, while maximizing the chances that the surrogate will actually collaborate with obligations she signed up for, even if unenforceable, such as waiving her medical confidentiality in order to allow access to pregnancy information for the intended parents.

Despite the observation that the vast majority of surrogacy arrangements don’t seem to devolve into a court battle, Rebouché remains troubled by the role of professional intermediaries, calling for more transparency about the process these professionals use to balance the shifting power dynamics in the relationship. In this vein, her suggestion that perhaps structuring fertility agencies as non-profits with a right to receive compensation for their services is an interesting one that calls for more examination, perhaps in future work.

Rebouché also cautions about the pitfalls of genetic tests in the context of surrogacy. She focuses on non-invasive prenatal testing (or NIPT), which currently detects big genetic abnormalities, such as a missing or an extra gene, through a blood test in the first trimester. The test is likely to be further developed in the future to reveal detailed genetic information, creating possibilities of termination on the basis of preferred traits rather than seriously debilitating illnesses or conditions. Rebouché suggests that the bioethical concerns on the test might be even more troubling in the context of surrogacy. She notes: “[C]oncerns about the use of prenatal genetic testing when controlled or heavily influenced by intended parents might be exacerbated. An intended parent is not pregnant and does not make testing decisions as a pregnant person might, perhaps feeling distance between themselves and the pregnancy without the physical experience of gestation.” (P. 1619.)

Concerns about frivolous demands for testing, however, could be less, not more, acute in cases of surrogacy, especially if protracted infertility is the background. Even when the background is single people or gay couples attempting to become parents with a genetic link, the financial and emotional cost of the process and the very genetic essentialism that Rebouché cautions against could result in significant compunctions about frivolous demands on the surrogate’s bodily autonomy and perhaps more acceptance of a less than “perfect” genetic combination. After all, it may be easier to imagine there will be a next pregnancy at all if what it takes to get to a pregnancy is sex-rather than hiring a soccer team of professionals for the cost of a small house in a rural area. While it is uncertain which way this will actually cut, without more evidence, the assumption about surrogacy exacerbating these concerns may need more finetuning. Anecdotal evidence suggests that NIPT in the surrogacy process may lead to less, not more, pregnancy testing, and is especially useful in avoiding more invasive procedures such as amniocentesis, hence less pressure on the surrogate’s bodily autonomy.

Overall, the article opens up a rich vein of inquiry into surrogacy contracts that is bound to prove fruitful. One possible future theoretical investigation would be further formalizing the bargaining dynamics involved in negotiating, executing, and enforcing a surrogacy contract, by examining further, the actual fallback positions of each party involved. Another fruitful direction would be digging deeper into the analogies between surrogacy and other kinds of contracts, as well as other mechanisms for perhaps evening out the parties’ bargaining power borrowed from even further afield. Labor law anyone?

  1. See, e.g., Courtney G. Joslin, (Not) Just Surrogacy, __ Cal. L. Rev. __ (forthcoming 2021), available at SRRN and previously reviewed on Jotwell by Douglas NeJaime.
Cite as: Philomila Tsoukala, Bargaining in the Shadow of (Confusing) Law: The Case of Surrogacy Contracts, JOTWELL (January 26, 2021) (reviewing Rachel Rebouché, Contracting Pregnancy, 105 Iowa L. Rev. 1591 (2020)), https://family.jotwell.com/bargaining-in-the-shadow-of-confusing-law-the-case-of-surrogacy-contracts/.