The Gender Binary

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Gender_signsWestern society has traditionally assumed a gender binary, classifying sex and gender as “male” or “female.” This binary is reflected in many aspects of our legal system. However in recent decades, the gender binary, and related assumptions about the fixed nature and unambiguous meaning of sex and gender, has been challenged by transsexual, transgendered and intersex people seeking legal recognition of their sex and/or gender identity and protection from discrimination based thereon.

In the US, the majority of states now permit alteration of sex on birth certificates for transsexual persons (whether sex-reassignment surgery is required varies from state to state), although a handful of states still take a “fixed from birth” approach to legal sex. The legal landscape in relation to marriage for transsexual people is similarly inconsistent and in flux.

Challenging the fixed nature of sex/gender is an important development, but in most jurisdictions, the gender binary has been kept legally intact. More recently, some jurisdictions are grappling with the question of “other-gendered” and “other-sexed” persons (the terms are not synonymous – the Norrie case, below, was framed as an issue of biological sex, not gender identity.) The issue has come to a head in Australia, where special leave to appeal to the High Court has been granted in a case involving a person who wishes to be recognized as legally genderless. Continue reading “The Gender Binary”

Law School in Hindsight

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At my alma mater, the University of Queensland, it is around this time of year that Brisbane’s jacaranda trees start to blossom their distinct purple bloom. It is a sight that I miss immensely, but back in my university day, the purple haze of the jacaranda around my hometown always aroused a slight sense of dread, signaling impending end-of-year examinations. At Oxford University, my second alma mater, the same sense of anticipation pervades the “gown” part of town at the end of each short term (Michaelmas, Hilary and Trinity), but instead of jacarandas, carnations are the relevant bloom. Following an old tradition, students attend examinations with carnations pinned to their academic gowns – white for the first, pink thereafter, and red for the final exam (these colors are rumored to represent the blood, sweat and tears that go into a degree.) I remember the trepidation and excitement with which I pinned on a white carnation, and the feeling of joy and freedom of walking out of the Examination Schools on red carnation day.

Jacaranda trees in bloom at The University of Queensland, Australia.

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Race and Adoption – American Children Abroad

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The United States is the largest receiver of intercountry adoptees, and has historically always been so. However international adoptions to American “forever families” have been on the decline since 2004, in line with the global trend. The decline is broadly attributable to tighter adoption controls and regulation, often implemented in response to controversies about baby-selling scandals and shifts in sending country sentiments about the propriety of sending orphans abroad. More recently, Russia’s controversial, politically-motivated decision in January to pass a country-specific ban halting adoptions of Russian children to American parents is likely to further impact the declining rate of foreign-born orphans received into American families.

In this context, and given the broader academic and policy debate on the merits and costs of international adoption generally, it is interesting to point out one figure that is reportedly rising – the number of African-American children being adopted from the US to foreign parents. Continue reading “Race and Adoption – American Children Abroad”

Toddlers, Tiaras and the Law

Posted on Categories Feminism, International Law & Diplomacy, Popular Culture & Law, PublicLeave a comment» on Toddlers, Tiaras and the Law

“On any given weekend, on stages across the country, little girls and boys parade around wearing makeup, false eyelashes, spray tans and fake hair to be judged on their beauty, personality and costumes. … From hair and nail appointments, to finishing touches on gowns and suits, to numerous coaching sessions or rehearsals, each child preps for their performance. But once at the pageant, it’s all up to the judges and drama ensues when every parent wants to prove that their child is beautiful.” (“About Toddlers & Tiaras”, The Learning Channel).

If the parent’s quest to prove her child’s superior beauty is, indeed, the point of beauty pageants, French parents may soon need to find alternative ways of doing so. The New York Times reports that the French upper house this week passed a women’s rights bill that includes a ban on beauty pageants for children under the age of 16; the measure now goes to the lower house for discussion. Continue reading “Toddlers, Tiaras and the Law”

American Exceptionalism – Your Thoughts?

Posted on Categories International Law & Diplomacy, Popular Culture & Law, Public10 Comments on American Exceptionalism – Your Thoughts?

Statute of LibertyBy now I imagine most readers have read Vladimir Putin’s New York Times op-ed, published yesterday. In the piece addressed to the American people and their political leaders, the Russian President argues against military intervention in Syria and urges adherence to the United Nations Charter to “preserv[e] law and order in today’s complex and turbulent world … to keep international relations from sliding into chaos.”

Putting the debate on the morality and legality of a possible US strike against Syria to one side, I found the final paragraph of the op-ed most striking:

My working and personal relationship with President Obama is marked by growing trust. I appreciate this. I carefully studied his address to the nation on Tuesday. And I would rather disagree with a case he made on American exceptionalism, stating that the United States’ policy is “what makes America different. It’s what makes us exceptional.” Continue reading “American Exceptionalism – Your Thoughts?”

A Right to Adoption?

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Two significant developments in Russia’s approach to the adoption of Russian children to foreigners have taken place this year. In January, a Russian law prohibiting American citizens from adopting Russian children took effect, thereby bringing to an end, at least for now, the longstanding and generally robust history of Russia-U.S. adoptions (between 1995 and 2011, almost 60,000 Russian children were adopted by American citizens). And just this week, the Russian Parliament approved a bill banning adoptions of Russian children to foreign same-sex couples. These laws can be expected to have, in the short-term, a discernible impact on the adoption prospects for the 100,000 or so Russian children resident in institutions.

The ban on American adoptions is known colloquially in Russia as the Dima Yakovlev Bill, named for a 21-month-old Russian boy adopted to American parents in 2008 and re-named Chase Harrison. Less than six months after his adoption, Chase died of hyperthermia after unintentionally being left in a car by his adoptive father. In a case that became highly politicized in Russia, the father was acquitted of involuntary manslaughter by a Circuit Court judge in Fairfax County, Virginia, in December 2008. The Russian Ministry of Foreign Affairs shortly thereafter issued a statement on the acquittal, expressing deep anger at the “flagrantly unjust ruling,” and implying a connection between Chase Harrison’s status as a Russian adoptee, and the lack of adequate punishment for his death.

Russia’s decision to ban American adoptions is at first glance a policy response to Russia-U.S. adoptions, such as Chase’s, that have gone wrong – Russia claims that a total of twenty Russian adoptees have been killed, whether intentionally or otherwise, by American adoptive parents. However the law is more commonly referred to in the U.S. as the “Anti-Magnitsky Law.” Continue reading “A Right to Adoption?”

Constitutional Questions Downunder

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Parliament House, Canberra

I woke up this morning to find that Australia, for the time being, has no Prime Minister. The position is vacant following Julia Gillard’s resignation last night. For those of you unfamiliar with antipodean politics, our system is a hybrid “Washminster” system, fusing federal elements of the American system with the British concept of responsible government. The Australian Federal Parliament is bicameral (House of Representatives and Senate). The office of Australian Prime Minister is the apex of the executive structure, but is not directly elected by the Australian people. Citizens vote for Members of Parliament, and the leader of the political party with a majority of seats in the House of Representatives is appointed Prime Minister. Of course, Australians usually bear in mind the leader of each major political party (i.e. the contenders for the position of Prime Minister) when casting their ballots.

As a result of this system, it is possible for a change in Prime Minister to occur mid-term if the ruling Party decides to change leadership (historically, a rare occurrence). It was just such a change that made Julia Gillard Prime Minister in 2010, and today she has been deposed as Prime Minister by the same means. Continue reading “Constitutional Questions Downunder”

“Illegal” Orphanages – Legality and Legitimacy in Chinese Culture

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In January of this year, the Huffington Post reported on a fire that killed six children and one young adult “at an illegally run orphanage in central China”:

“The deaths Friday in Henan province’s Lankao county have spotlighted China’s lack of government-run child services. They are often left to private citizens with few resources and no legal authority. The Lankao government earlier acknowledged that it had turned a blind eye to the illegal orphanage, which cared for abandoned children and young adults. … The deputy county governor said earlier that some departments had failed in supervision and should shoulder responsibility.” Continue reading ““Illegal” Orphanages – Legality and Legitimacy in Chinese Culture”

Constitutional Adjudication and Social Division – A Judicial Perspective

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I am pleased to be leading a very vibrant seminar this semester, during which we contemplate the judicial process as evident in constitutional/human rights decisions from jurisdictions as far-flung as Germany, Jamaica and India. Covering a range of substantive topics, from torture to religious freedom to socio-economic rights, our discussions and analysis can be distilled down to two underlying questions: what do judges say they are doing, and what are judges actually doing? A plethora of historical/social/contextual factors feed into the judicial process, and determine the scope and nature of the project of constitutional adjudication.

The upcoming SCOTUS decisions on the 1996 Defense of Marriage Act (denying federal benefits to same-sex couples that are legally married in their states) and California’s Proposition 8 (a voter-approved ban on same-sex marriage), in addition to their potentially profound personal significance to persons on all sides of the marriage debate, will no doubt provide rich fodder for human rights jurists.

So it is timely, I believe, to bring attention to the story of South Africa’s constitutional adjudication of this sensitive issue, and to consider the role the South African Constitutional Court sees itself playing when it deals with the complexities of constitutional rights. Continue reading “Constitutional Adjudication and Social Division – A Judicial Perspective”

An American in Beijing: Landmark Domestic Violence Ruling in China

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Last weekend, a Beijing court granted a divorce on grounds of domestic violence, in a case which has garnered widespread attention and debate in China for the past year. In 2011 an American woman, Kim Lee, went public on social media websites (including with graphic photographs) with allegations that her husband, an infamous English teacher by the name of Li Yang (founder of “Crazy English”), was abusive. Her battle for due legal protection and recognition of her plight culminated in the Beijing decision, which granted her a divorce, and issued a three-month protection order against Li Yang – apparently the first time such an order has been granted in Beijing. In addition to acknowledging the domestic violence, the court ordered Li Yang to pay 50,000 RMB [approximately $8000] in compensation, and a further $1.9 million as part of the divorce.

Kim Lee has become a symbolic hero for domestic violence victims in China, and her case has ignited interest and debate about the issue of domestic abuse. Continue reading “An American in Beijing: Landmark Domestic Violence Ruling in China”

The US’s Pivot to Asia

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In June of this year, I was privileged to attend a series of discussions at the US Naval Academy in Annapolis between retired four-star Generals from both China and the US. The discussions covered a range of topics relevant to the American and Chinese military, including counter-terrorism operations, the situation in Pakistan and Afghanistan, and the South China Sea dispute. But a recurring point of contention and debate was America’s “pivot to Asia”, that is the strategic military refocus on Asia which was announced in 2011.

The Obama administration has been at pains to point out that the so-called pivot is not aimed at containing China. US Secretary of Defense Leon Panetta, speaking in Singapore earlier in June 2012, likewise insisted that the shift of focus to the Asia-Pacific is not intended to contain or challenge China, saying that “increased US involvement in this region will benefit China as it advances our shared security and prosperity in the future”.

However, despite such reassurances, my impression from the Chinese Generals I met in Annapolis was that the pivot to Asia is widely regarded in Chinese military circles as indicative of American mistrust and suspicion towards China and its regional aspirations, and thinly veils America’s intention to assert its power and dominance in the Asia-Pacific region, including by means of military influence.

So I was interested, in last night’s Presidential debate on foreign policy, to note that in the segment dedicated to “The Rise of China and Tomorrow’s World” President Obama took the surprising step of referring to China as an adversary: “China is both an adversary, but also a potential partner in the international community if it is following the rules.” This characterization of China is inconsistent with the rhetoric deployed by the Obama administration, but is sure to resonate with many in China as indicative of the true nature and intent of America’s military pivot.

EU Awarded Nobel Peace Prize

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The European Union was last week awarded the 2012 Nobel Peace Prize. Previous institutional recipients of the award include the Intergovernmental Panel on Climate Change (2007), the United Nations (2001), and the Red Cross (1944). While the announcement was met with pride and applause by many within and without Europe, the Euroskeptics have been equally vocal in their derision of the award, pointing to ongoing social instability in many regions of Europe due in part to the Eurozone economic crisis, and the ongoing existentialist crisis the EU seems to be facing.

Such objections somewhat miss the point of the accolade, which has clearly been granted in reference to a longer-term contextualization of the ‘European project’ – after a century of continental turmoil, the creation of the European Communities in the 1950s, which eventually led to the birth of the European Union, was a watershed moment, marking the beginning of a new era of intergovernmental cooperation, an unprecedented single market project, and supranational implementation and enforcement of a new legal order for the benefit of European citizens.

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