Kids Will Be Kids, or Why We Should Stop Forcing Gender On Our Children

Grace Ramsay, LSRJ Summer Reproductive Rights Activist Service Corps (RRASC) Intern (’16, Smith College)

I spent the past weekend at a family friend’s in northern California, with no internet/phone access, and around 40 children ages 5 months – 10 years.  To many — myself included — this sounds like a nightmare.  I have never considered myself a “kid person,” and tend to feel uncomfortable when interacting with children.  My friends always seemed much more natural than I did when communicating with toddlers and pre-schoolers.  I didn’t understand how you could relate to someone whose age was yours divided by four.  So I was completely taken by surprise when I started forming relationships with several of the younger children over the weekend.  Boys and girls alike wanted to hold my hand, to run around together, and to tickle me to death.  Maybe it was because the parents at this weekend are fairly progressive, but I noticed right away that both sons and daughters were held to the same social expectations.  One moment in particular struck me: I was talking to a boy and a girl, and the boy kept interrupting her.  She turned to him, said “Excuse me!” and finished her sentence.  She didn’t let him cut her off again.  During my stay at The Land (the official name of the house upstate), I watched kids of every gender get dirty playing outside, decorate papier mache  bunnies, and sing along to folk music.

It’s no secret that gender socialization exists, and it starts right from when the doctor proclaims, “It’s a girl!”  The gender binary is coded for far more than difference in “biological sex,” a term debated today.  Girls and boys are expected to talk, dress, and play differently.  Gender differences are exaggerated to the point that activities are often gendered — girls get to play dress up, boys get to run around outside.  The socialization of boyhood and girlhood forces children into very distinct pink /blue boxes, leaving little room for gender expression outside of their assigned identity.  This limits cis boys and girls to either “girly” or “boyish” expressions, and completely disregards trans children’s possibility of living authentically.

Fighting gender socialization is a reproductive justice issue.  The right to parent with dignity goes both ways; children deserve to self-express in ways that make them feel comfortable and safe.  Returning to San Francisco after the weekend away, I was bombarded with gendered ads for young people.  Maybe a world without gendering childhood is only possible during a hippie retreat.  But from now on, I’ll keep on helping little kids play however they’d like.

#KeepItConfidential

Ruth Dawson, Resident Blogger (’12, Emory University School of Law)

Under a landmark California bill passed last year, individuals covered under another person’s insurance policy will soon be able to seek sensitive services such as birth control, STD tests, and mental health services, without worrying about the disclosure of these services to the policyholder. This person is usually a parent or spouse, a fact which often prevents people from using their insurance to get the medical care they need. Going into effect January 1, 2014, the Confidential Health Information Act (SB 138) closes a loophole in California law, where insurance plans unintentionally violate patients’ confidentiality by sending information about the services received home to the policyholder.

April is Sexual Assault Awareness Month, and is thus a particularly important time to be focusing on confidentiality of medical and mental health services. In addition to the common problem of young people heading to a free clinic for routine reproductive care and claiming no insurance (as many of my friends did instead of admitting to their parents that they needed care), this law will have a profound effect on survivors of sexual assault, domestic violence, and gender-based violence. Maintaining confidentiality is crucial for survivors of assault to feel comfortable and empowered to access the physical and psychological services they need, without fear of stigma, forced disclosure, or cruel yet common reactions, such as victim-blaming.

For this new law to have the wide-reaching impact advocates desire, we must create a smooth system for patients to request confidentiality, educate patients across the state that they have the option to request confidentiality, and train providers in how to effectively implement this system in service provision. The smoother the implementation of this bill, the more likely the new law will be used as a model for patient confidentiality of sensitive services around the nation.  I’m proud that California is making real strides to #keepitconfidential for all patients.

I am a rape survivor. NOT a victim, a survivor. This is my story. (Part I)

Maria Moore, Guest Blogger (’16, University of North Carolina School of Law)

My story actually starts several years before I was raped, on March 7, 1997 when I was in third grade. I was called to the principal’s office, and the usual chorus of “OOH!”s that can be expected from a group of third graders accompanied me as I left the classroom. I walked the familiar path to the office of our school disciplinarian, wondering what I had done this time.

It was not the principal who awaited me, however. It was a stranger, who told me she was a detective, and that everything was okay now and that I had nothing to worry about as long as I told the truth. Then she told me that she knew I had been touched in an inappropriate way by a family friend and that as long as I did everything I could to help, I would be safe from that ever happening again.

My parents were not present. A lawyer was not present. The principal was not present. It was just me, the detective, and her tape recorder. I was 8 years old. Little did I know that my little sister, age 5, was in another chamber of the catacomb that encompassed the administrative suite of my elementary school. She was being asked the same uncomfortable and odd questions about a family friend we both loved.

The detective proceeded with a line of questioning that included everything from my usual activities with said family friend (let’s call him “Q”), which involved the types of innocent enjoyment a normal grown man can be expected to have with the daughters of two of his closest friends, to my vivid and unusual nightmares. Somehow, these two things were later combined and used against Q in the papers. Later that day, a female police officer picked my sister and me up from our after-school program and brought us home in a squad car. The police had already arrived at my home and discussed the situation with my parents, who allowed entry because the police officer who knocked on the door said simply, “Your children have been hurt.”

When we walked in, my mother called us to her room and asked whether there was any truth to the allegation that Q had ever touched either of us in a sexual way. The answer was a resounding “no.” When we emerged from the room, a man I did not recognize proceeded to scream at my mother for allegedly “yelling at us” and “telling us what to say.” This upset me and my sister greatly. Never once during the harrowing 6-month investigation was any evidence uncovered that Q had indeed abused us. We went through family therapy, individual therapy, physical examinations (this being a euphemism for having cameras and fingers shoved in our vaginas and anuses), repeated visits from a social worker and various police officers, and countless questions.

This man did not abuse us. This was an innocent man who ran afoul of some of his co-workers and whose life was destroyed because of it. He was described in the paper and on the news as a Satanist and a child molester. He, along with unnamed others (including my parents), were supposedly part of a group engaging in Satanic ritual child abuse.   I believe the lead detective on the case wanted to make a name for herself with one or more convictions.

Despite the overwhelming lack of evidence, my parents were warned that my sister and I could be taken from them and that we were not to leave town. Q was forced to serve 30 days in jail on a trumped-up pornography charge for the heinous crime of having obscene pictures of an adult ex-girlfriend in his attic. He has never set foot in the state of North Carolina since he got out of jail, with one exception – my wedding day. This is a man who loved two little girls in every sweet way that an adult man can. His absence from our lives is deeply felt and incredibly unfair.

One good thing, if you can possibly stretch the meaning of “good” that exceedingly far, is that Q’s lawyer was able to keep his name off of the sex offender registry. Yes, you read that right. No evidence of any wrongdoing was ever found, yet the prosecutor was still aiming to put the name of an innocent man on a list that would act as a scarlet letter branded on his chest for the rest of his life. For no reason.

During the time that our local police department actively and tirelessly wasted taxpayer money pursuing this entirely meritless case, there were undoubtedly  an innumerable amount of girls and women actually being sexually abused and assaulted, women whose attackers were less visible and whose stories were less striking, and who therefore garnered significantly less attention (read: none.)

I know this because I was eventually one of those girls.

Channeling Human Trafficking Survivors

Amanda Shapiro, Resident Blogger (’15, Brooklyn Law School)

New York announced that it will be among the first to create specialized courts for human trafficking and prostitution.  This move is indeed a step in the right direction.  Human trafficking has achieved celebrity status in human rights reform – likely because there aren’t many sympathetic defenses to “modern slavery” (e.g.,“Oh, whoops, I just forgot to pay my cleaning lady while I kept her in my basement for the past eight years” doesn’t fly too well in federal court).

However, the path to justice for victims of sex trafficking is complex.  We know (as The West Wing aptly noted) that no little girl says, “I want to be a prostitute when I grow up.”  And yet, the way the criminal justice system treats prostitutes would lead anyone to improperly deduce this motive.  This inference is so strong that it trickles into punishing children who are forced into sexual exploitation for money (most or all of which they don’t get).  Somehow, states find no problem in punishing children for prostitution, while contemporaneously declaring their inability to consent to sex (in statutory rape), their inability to enter into a contract (in contracts), and their inability to work (in child labor).

Proving that human trafficking is afoot requires “force, fraud, or coercion” – this burden does not seem high, but in practicality can be insurmountable.  “Pimps” use a grooming process (like that of pedophiles) for both children and women.  This tactic can even lead to victims defending their trafficker.  Despite New York’s laudable step, the trafficking courts will continue processing prostitutes through the criminal system (aka prosecuting them). Courts would do well to remind themselves, in considering “force,” that girls grow up wanting to be doctors, lawyers, teachers, etc., rather than an object of commercial sexual exploitation.

There’s no “I” in LGBT: How Reproductive Justice can (and must) end intersex invisibility

Courtney Fraser, LSRJ Summer Intern (’15, University of California, Berkeley Law School)

So, summer’s almost over, which means the time to go back to law school is drawing nigh – and no one’s really excited about that, right? Well, I am. Let me tell you why. I have this awesome field placement lined up with Advocates for Informed Choice, an (read: THE) organization working for the rights of intersex people. This fall, I’m going to be knee-deep in AIC’s groundbreaking litigation on behalf of a child (identified as M.C.) who suffered unnecessary genital surgery, and I absolutely cannot wait. When I told my new gentleman friend about the case I will have the privilege of working on, he was shocked. That happens? All the time. To how many people? As many as 1 percent of live births are intersex, and 0.1 or 0.2 percent become victims of “normalizing” surgical mutilation.

So why aren’t more people outraged? Why do so few people even know about this?

I’ve heard the explanation that intersexuality is a niche issue. It’s not. That’s bull. Not only are intersex issues (a) clearly important in their own right and (b) closely tied to queer and trans* causes, but (c) this is also a reproductive justice issue, which means that if you are a woman – if you are a person – you are obligated to care about this.

The real reason that most people are unfamiliar with intersex issues is, itself, part of the problem: the standard of care for intersex infants still usually follows the concealment model, which involves doctors misleading patients and their parents, gaining misinformed consent or none at all, and conducting genital surgeries that are medically unnecessary and unfathomably harmful – these surgeries can leave patients with little or no sexual function, in chronic pain, and sterile.

Bodily autonomy, personal choice, and identity determination are of course central to the reproductive justice movement, but we don’t even have to look that far for the connection. Intersex people are literally having their reproductive capacities destroyed without their consent because of who they are. This is no less an RJ issue than the illegal sterilization of incarcerated women in California, which garnered extensive attention earlier this month. That story involved about 250 women. 4 million babies are born in the U.S. annually, give or take, which means that between four and eight thousand intersex infants are being sterilized every year.

A tenth of a percent sounds much, much bigger when you put it that way.

So, what can we do? Let’s draw a parallel to another reproductive justice issue – abortion access. To (perhaps grossly) oversimplify, cultural barriers to addressing this problem work on two levels. The first is visibility. People don’t know how many women are obtaining or needing abortions – or their reasons for it – or that some of these women are most likely people in their lives. As with intersex stories, abortion narratives that put a face on injustice are not often shared, because of socially-imposed shame or a personal desire for privacy or something that looks like the product of both – and when they are shared, prong two kicks in. Even when invisibility is surmountable, people still cling to the idea that this injustice is justified – that women who need abortions still shouldn’t have them, because of fetal personhood, or puritanical mores, or whatever. With intersex surgeries, people who know they go on – including the doctors who perform them – convince themselves they are the treatment necessary to stop children from growing up “confused” or “deformed” or ashamed of their bodies. What needs to be realized – as Anne Tamar-Mattis, Executive Director of AIC, points out – is that surgery “sometimes causes the problems it purports to solve.” Non-consensual and unnecessary genital surgery seems like a far more likely root of confusion and shame than the alternative – postponing medical intervention until a child can make his or her own informed and empowered decision.

AIC’s current lawsuit addresses both prongs of the problem. As the first case of its kind, it has already been reported on by over 130 blogs and news sources, raising the profile of intersex issues in the public consciousness – and with visibility boosted, channels will be open to receive the message that what is happening to children like M.C. is in no way justified – medically, culturally, or otherwise.

To learn more about why intersex rights are of concern to the reproductive justice movement, see LSRJ’s fact sheet at http://lsrj.org/documents/factsheets/13_Intersex.pdf.

Threats to Youth Healthcare Privacy, the ACA, and SB 138

Kaitlin Morrison, LSRJ Summer Intern (’15, Columbia Law School)

The expansion of healthcare brought by the ACA is much-needed and certainly a net positive. Dependents may now remain on insurance until the age of 26. With this expansion however, the pre-existing gaps in privacy protections have been exacerbated. Consider the case of a young adult who goes to the doctor for a routine STD screening (the responsible thing, right?), only to have this private information relayed to the primary policy holder – usually the parents! The right to healthcare should not be conditional upon a relinquishment of doctor-patient confidentiality.

The basic conflict is between two important policies: maintaining appropriate communications between insurer and policy holder to ensure billing and payment transparency versus protecting patient confidentiality for insured dependents accessing “sensitive services:” sexual and reproductive health care, mental health services and drug and alcohol abuse treatment.

Many negative consequences are likely to result from this administrative quagmire. Minors and adults on another’s insurance may simply choose not to seek medical care for STD testing and treatment, contraception, and drug and mental health services, for fear of this information being shared. Alternately, dependents on private insurance may seek public clinics for STD testing and similar services to avoid the possibility of parental notification, shifting the cost to the state. Victims of domestic violence will face a difficult decision: seek treatment and risk the possibility of their location being known by their abuser (if they share a policy), or not seek medical care.

The patchwork of laws and regulations protecting privacy are incoherent in a model in which young adults remain on their parents’ insurance. By law, adult patients in California have a right to keep all health information confidential and decide whether and when to share that information with their partners and parents, regardless of whose insurance plan they are covered under. Adolescent patients in California have a right to keep certain health information confidential and decide whether and when to share that information with parents, including information about “sensitive services.” However, the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) made an exception to the general confidentiality rules above, allowing providers and insurers to use and disclose information for payment and health care operations purposes. “Reasonable efforts” are required to limit disclosure to the “minimum necessary” to accomplish the intended purpose of the disclosure. This unclear standard is insufficient to protect privacy.

A solution to this problem has arisen in the form of SB 138, authored by state Senator Ed Hernandez, which aims to bring clarity to the myriad state and federal statutes and regulations related to the sharing of patient information in order to protect patient confidentiality for insured dependents. At the heart of the bill are two provisions: If the patient is a dependent on another’s policy, and is less than 26 years old, all such communications would be barred unless the patient authorizes them. If the patient is not a dependent and under 26, there is no automatic barring of sensitive communications, but if that patient submits a nondisclosure request, the insurer will have to honor it.

The most recently amended form of the bill will go to the appropriations committee after recess. Consider contacting your state Senator to show your support.

The Family and Medical Leave Act Advances Reproductive Justice

This article was published by The Center for American Progress.  

Elizabeth Chen is a Policy Analyst for the Women’s Health and Rights Program at the Center for American Progress and a Law Students for Reproductive Justice law fellow.

The Family and Medical Leave Act was signed into law 20 years ago today and was a great first step toward supporting workers and workplace fairness. The law ensures that employees can receive 12 weeks of unpaid job-protected leave to recover from a serious medical condition, provide care for a seriously ill family member, or care for a new child. Workplace leave, however, is not just an employment issue—it is also a matter of reproductive justice.

Reproductive justice stands at the intersection of traditional reproductive rights concerns, such as the decision whether to become a parent, and social justice issues. In addition, it centers on the reproductive health needs of the most marginalized populations, including women of color, low-income individuals, and individuals with disabilities, among others. In our 2006 report,“More than a Choice: A Progressive Vision for Reproductive Health and Rights,” we set forth four cornerstones essential to a progressive reproductive health, rights, and justice agenda, including policies that support the ability to become a parent and to parent with dignity—meaning being able to financially, emotionally, and physically support a child’s basic needs—and the ability to have healthy and safe families and relationships.

Workplace leave is crucial for all people, but especially for low-income individuals seeking to become parents and have healthy families—a right to which we are all entitled. Historically, though, some parenting has been privileged at the expense of others, and not everyone has been able to exercise this right.

Laws and social movements, for example, encouraged white women to stay out of the workforce in order to provide full-time care for their children, while driving women of color—especially black women—into paid work, thus preventing them from being full-time stay-at-home caregivers to their children. Harvard Law Dean Martha Minow has documented how welfare policy for mothers in the late 19th century provided income support for them to stay at home. When access to such income support became increasingly available to black women during the civil rights movement of the 1960s, however, the rhetoric surrounding welfare became more negative. University of Pennsylvania Law Professor Dorothy Roberts explainsthat, “The central message of welfare reform is that recipient mothers are deviant for staying home and would better serve their children by finding jobs.”

To this day, programs such as Temporary Assistance for Needy Families, which provides income support for families living in poverty, require work in the formal economy—or training for it—driving low-income parents into the workforce. Unpaid work within the home, including caring for families, does not satisfy the program’s requirements. This is not merely a historical remnant of former cultural biases—as recently as the 2012 presidential election, former Massachusetts Gov. Mitt Romney (R) claimed that he would require mothers receiving income support to either work outside the home or lose the support.

Furthermore, parenting itself is highly gendered in law and society, making it difficult for men to assume caregiving roles. Sex-role stereotypes, often historically codified in law, cast white women as caregivers and white men as breadwinners. Masculinity throughout the 20th century was defined by this stereotypical family wage system, even though working-class men and men of color were largely excluded from that system.

The gendered breadwinner-caregiver model has become increasingly destabilized over time. In fact, as we noted in our issue brief, “The New Breadwinners: 2010 Update,” in 2010 women were either primary breadwinners or co-breadwinners in nearly two-thirds of American families with children. Yet gendered caregiver bias persists and can result in employment discriminationagainst men when they request leave to care for their children.

Given the devaluation of caregiving, while also recognizing that most parents—especially low-income ones—must work, how can we support working parents as both workers and caregivers? The Family and Medical Leave Act was a step in the right direction: By protecting the jobs of workers caring for a new child, the law reflects policymakers’ recognition that caretaking after birth or adoption of a child is essential, and that workers should have the flexibility to take time off to do so.

The law also furthers equality and disrupts sex-role stereotypes by applying equally to both men and women. Under the law, men and women alike have the opportunity to take time off to care for family members—and the percentage of men taking leave for caregiving purposes hasincreased steadily over time. Even former Supreme Court Justice William Rehnquist, initially anopponent of women’s equality under the law, acknowledged the crucial work that the law does to “attack the formerly state-sanctioned stereotype that only women are responsible for family caregiving.”

Workplace policies such as the Family and Medical Leave Act give workers the opportunity to care for their families with dignity by permitting them to continue to work and also to spend crucial time bonding with their new children. Under the law, workers can also take time off to care for a seriously ill family member, including a child, expanding the ability for parents to meet the needs of their children.

Unfortunately, the Family and Medical Leave Act doesn’t go far enough. As we noted in our 2009 issue brief, “Labor Pains: Improving Employment and Income Security for Pregnant Women and New Mothers,” the law only covers a subset of workers.  According to new statistics released by the Department of Labor, more than 60 percent of workers do not qualify for the protections of the law because they or their employers do not meet one or more requirements for leave. Moreover, because the leave is unpaid, almost 50 percent of workers report not being financially able to take the leave. Guaranteed leave does not enhance the ability for individuals to parent with dignity if they do not qualify for it or cannot afford to take it.

Workplace leave is crucial for people with children to be able to parent with dignity and have healthy families. The ability to care for children when they are born or adopted, or when they fall ill is essential to a holistic and comprehensive vision of reproductive health, rights, and justice. The Family and Medical Leave Act was a good beginning, but we must continue to fight until all Americans have the ability to care for their children without jeopardizing their job or their income.

Abortion isn’t my story. But it’s an important part of it.

Ash Moore, Resident Blogger (’14, University of Oklahoma College of Law)

It is the 40th anniversary of Roe v. Wade. I’m in law school so you may think you’re about to be bombarded with legalese and a disconnected opinion. But I have a different and important perspective – a personal one.

When I was a teenager, I was raped. Gang raped. And as cliche and trite as it has become, I was ashamed and felt like it was my fault. So, despite my better judgment, the first thing I did was take a hot shower. I washed away all evidence of the crime even though I knew exactly what I was doing. After the shower, I went in to denial. I tried to pretend like it didn’t happen. I didn’t get tested for STDs and I didn’t do anything about a potential pregnancy.

Then, in a couple of months when I started throwing up and feeling like I was getting fatter, reality set in with a vengeance and brought sheer terror with it. I didn’t know anything about pregnancy except how it came about and I knew it was a possibility.

At that point, I was more determined not to tell anyone than I was before. What if they didn’t believe me? Or what if they did and they were furious I did everything I wasn’t supposed to do? Either way, what was I going to do if I was really pregnant? I knew abortion was an option, but I didn’t want to kill something growing inside me.

I could give a baby up for adoption, but my life would be permanently changed and maybe ruined in the meantime. I didn’t know if that option was selfish, but I didn’t make a mistake, this was forced on me. Couldn’t I put myself first for a second?

I could keep the baby. But I truly believed that wouldn’t be the best thing for the baby. I wouldn’t be able to give it the kind of life it deserved. I would struggle, not have money, and be a young parent (with or without help) which is hard on the people I knew who had young parents.

Whether you think it was right or wrong, abortion was a huge part of the decision process. And the longer I thought about it, the more it seemed like the most rational and right choice. I’m deeply religious and that caused a huge problem and huge internal struggle. Would God understand? Would He approve? Would I be condemned? I knew no matter what decision I made, I would never be the same again.

Most people agree that abortion should be available for rape victims. So I wasn’t in the same position as the women struggling with restricted rights today. But what was the same was the excruciating decision process and fear. What the pregnancy test result was and what I ultimately decided are irrelevant.

What is relevant was that I had a tough decision to make and no matter what I decided, more options made the tortuous experience a little easier. It made me feel like others had struggled and came to the same decision I did; no matter what I chose, I knew I would never blame or fault anyone for making a different one in that impossible situation.

No matter how someone gets to the point where they need to make a decision regarding a pregnancy (through rape, mistake, health or money problems, or other things I may not be able to think about right now), I believe all the choices I had should be available to every other woman (and more if we can find them).

I think access to all the choices should be easy because the decision making process is hard enough. I think most women probably walk in to a doctor’s office or adoption agency after as much thought, pain, and tears as I went through. Any obstacles to make these personal decisions harder are cruel and unusual punishment.

If abortion is the ultimate decision, I believe no doctor or spectator has a better idea of the heartbeat about to stop than the woman who has to live with the decision. As you can see, abortion isn’t my story. But it’s an important part of it. And it’s an important part of society. No matter what you would choose, imagine, as I did, the process without one or more of the choices.  Then look me in the eye and tell me you want to do that to another living, breathing, caring, concerned person who is only trying to think about the best decision she can make for herself and her family. It should never be harder than it was for me. Or you. If you know the feeling.

Lobbying – What They Don’t Teach You in Law School!

*LSRJ brought a delegation of eleven members, alums, and staff to the annual Reproductive Freedom Day (RFD) in Sacramento. Catherine Groat, a 2L at Santa Clara Law School, decided to share her experience here.

Whenever I hear about lobbying, it’s always in this vague smoke and mirrors type of fashion. In my cartoon fantasy, picketers are swarming women and men dressed in red and blue suits as they make their way to their offices on top of a very high hill. I’ve learned, however, that lobbying in its basic form is actually just the purest form of democracy: a group of concerned citizens voicing their opinions to their government in hopes of making a difference.

As a law student, this form of advocacy is new and empowering. The ability to change laws by lobbying legislators instead of judges seems a foreign but fresh idea, and I felt at Reproductive Freedom Day that I had contributed a small piece to a larger scheme and mission that I cared about. Continue reading