Essay

Universal Injunctions: Why Not Follow the Rule?

Over the last several years, a debate has flared up over universal injunctions, court orders that purport to benefit individuals across the nation, including vast numbers of people not party to the litigation from which the injunction issues. Critics on the left decry injunctions seeking to shut down executive action by the Obama Administration, while those on the right decry the mirror image injunctions against programs of the Trump Administration.1 1.Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 418–19 (2017) (recounting the litigation).Show More To these actions, a third round of injunctions against immigration policies of the Biden Administration can now be added.2 2.State of Texas v. United States, 21-cv-00003 (S.D. Tex. Feb. 23, 2021). The court enjoined a 100-day moratorium on deportations imposed by the Department of Homeland Security in the Biden Administration.Show More All the while, a solution to these controversies remains hiding in plain sight in Federal Rule of Civil Procedure 23.3 3.Fed. R. Civ. P. 23.Show More Subdivision (b)(2) of the rule allows class actions when “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Subdivision (b)(1) goes into even greater detail in identifying when class actions should be certified because individual actions would prejudice class members or parties party opposing the class. Both subdivisions speak to the need for injunctions whose benefits go beyond the named parties to the litigation. Why don’t these provisions solve the problem of universal injunctions? If a class can be certified, then the injunction can reach beyond the named parties. If it cannot, then the injunction must be limited to the named parties.

The scholarly commentary on universal injunctions has recognized the relevance of these provisions, particularly Rule 23(b)(2), but then inexplicably pushed them to the margins of analysis. Failure to certify a class has been identified as a precondition of the problem but not as a solution to it. One author has simply excluded certified national classes from the analysis,4 4.Alan Trammel, Demystifying Nationwide Injunctions, 98 Tex. L. Rev. 67, 77–78 (2019) (noting that due process protections in class action have “little to no bearing on most nationwide injunctions, though, in which the problematic questions concern the rights of nonparties”) (emphasis in original).Show More while another has pronounced the terms of Rule 23 to be “formalistic.”5 5.Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B.U. L. Rev. 615, 634 (2017) (“In short, certification under Rule 23(b)(2) is a formalistic gesture that neither limits the scope of a court’s discretion nor guarantees due process for putative class members.”).Show More A sophisticated history of universal injunctions in equity puzzles over the marginalization of the rule, but then moves on to formulate a different set of constraints on universal injunctions.6 6.Bray, supra note 1, at 469–81.Show More As this article notes, “the need for and value of this class action provision is greatly diminished if plaintiffs can get the same relief in an individual suit that they can in a class action.”7 7.Id. at 464–65.Show More Still another article delves deeply into the history of equitable remedies but stops abruptly in the middle of the twentieth century, before the current version of Rule 23 began to take shape.8 8.Mila Sohoni, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. 920, 982–93 (2020) (concluding her analysis with decisions from the 1930s and 1940s).Show More If the rule could so easily answer the problem they have posed, perhaps they fear that it would be dismissed as merely procedural, rather than a matter of constitutional dimensions concerning the remedial power of the federal courts. Conversely, those who favor universal injunctions, and who are less concerned with limits upon them, might find the rule too restrictive because it requires certification of a national class to support a universal injunction.

This Essay argues that debates over these apparently binary choices are misconceived. Analysis under Rule 23 does not displace, but instead incorporates, fundamental issues of constitutional law and federal judicial power. So, too, it does not dictate an all-or-nothing answer to the question whether universal injunctions are ever appropriate. The rule frames the appropriate terms in which such questions can be answered, without the addition of tests and factors that would further restrain or enhance the availability of universal injunctions. This Essay advances this argument in three parts. The first analyzes the prominence of constitutional issues in the current debate. The second recounts the history of universal injunctions from Equity Rule 38 to Federal Rule 23. The third responds to concerns that certification of class actions is too “formalistic” and argues that it should be seen instead as a necessary precaution related to the merits of the plaintiffs’ claims and the risk of conflicts of interest within the proposed class. All of these considerations yield the simple conclusions that universal injunctions must be preceded by certification of similarly broad class and that there is no need to address the power of courts to issue this remedy if this prerequisite is not met.

I. The Current Debate and Constitutional Issues

The current controversy over universal injunctions gained national prominence with litigation over initiatives in both the Obama and the Trump Administrations. In Texas v. United States,9 9.86 F. Supp. 3d 591 (S.D. Tex.), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (mem.).Show More the district court issued a preliminary injunction against the Obama policy of not enforcing the immigration laws against “Dreamers,” adults who had immigrated as children without documentation as children.10 10.This program, Deferred Action for Parents of Americans and Lawful Permanent Residents, conferred benefits upon over four million individuals who are currently in the country without documentation, chiefly deferring any attempt to deport them. Texas v. United States,86 F. Supp. 3d at 604.Show More A few years later, universal injunctions were issued against Trump’s executive orders creating the “travel ban,” restricting entry of aliens from identified countries with predominantly Muslim populations.11 11.Trump v. Hawaii, 138 S. Ct. 2392 (2018).Show More These injunctions were reversed by the Supreme Court on the merits. Justice Thomas filed a concurring opinion also disapproving of the universal injunctions as an inappropriate remedy insofar as it extended to nonparties.12 12.Id. at 2425, 2427–29 (Thomas, J., concurring).Show More He expressed doubt that such injunctions conformed to the “case or controversy” requirement of Article III.13 13.Id. at 2425.Show More

He defined the problematic injunctions as those “that prohibit the Executive Branch from applying a law or policy against anyone—often called ‘universal’ or ‘nationwide’ injunctions.”14 14.Id. at 2424–25.Show More These injunctions have the highest profile and therefore generate the most debate, but the same problems arise with respect to any injunction that extends broadly beyond the parties to the litigation. For instance, an injunction that protects enforcement of a state statute against anyone raises the same basic issues.15 15.As occurred, for instance, in Galvan v. Levine, 490 F.2d 1255, 1257 (2d Cir. 1973), which concerned a statewide injunction against denial of unemployment benefits to certain workers from Puerto Rico.Show More As Howard Wasserman has pointed out, the problem is not with the geographic scope of the injunction but with those who can benefit from it.16 16.Howard M. Wasserman, Congress and Universal Injunctions, 2021 Cardozo L. Rev. De Novo 187, 191 (2021).Show More At the opposite extreme, the same problems do not arise with respect to injunctions for the benefit of existing parties that have incidental effects on nonparties. Orders to abate a nuisance are the standard example. A nuisance action by one landowner to enjoin a nearby factory from polluting the air works to benefit of adjoining landowners, but only because full relief to the actual plaintiff requires the factory to reduce pollution to all the landowners.17 17.Warth v. Seldin, 422 U.S. 490, 499 (1975) (“The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally.”).Show More This necessary incidental effect is a far cry from the wholesale extension of an injunction to reach nonparties all across the state or nation.

But is it fundamentally a constitutional problem? Anyone acquainted with the legal doctrine surrounding the “case or controversy” requirement under Article III knows that the definition of its scope and limits has proved elusive. It usually raises more questions than it answers.18 18.A recent case generated multiple opinions in the district court, court of appeals, and the Supreme Court, eventually yielding the conclusion that the plaintiff had sufficiently alleged standing to move beyond the pleading stage of litigation. See Robins v. Spokeo, Inc., 2011 WL 597867 (C.D. Cal. 2011), rev’d, 742 F.3d 409 (9th Cir. 2014), vacated and remanded, 136 S. Ct. 1540 (2016), on remand, 867 F.3d 1108 (9th Cir. 2017), cert. denied, 138 S. Ct. 931 (2018). All this occurred even though Congress had clearly granted the plaintiff the right to sue. 136 S. Ct. at 1545.Show More Yet most of the commentary on universal injunctions has sought a definitive resolution of their validity in constitutional law. Perhaps, given the vicissitudes of the decisions defining a “case or controversy,” this question is better avoided.

The leading article critical of universal injunctions, by Samuel Bray, has given this constitutional issue an historical dimension. He argued, and Justice Thomas agreed, that universal injunctions have become common only since the 1960s.19 19.Bray, supra note 1, at 437–45.Show More According to Bray, universal injunctions might have made sense in England in the eighteenth century, with completely unified courts of equity under the control of a single chancellor, but they were not suited to a federal system of government with judicial power widely distributed among many state and federal judges.20 20.Id. at 424–27.Show More The disjunction between a unitary chancellor and federal judicial system became problematic in the 1960s as courts moved away from traditional rules of standing, according relief primarily to the parties before them, to an emphasis on declaring what the law is, based on “facial” challenges to statutes and other forms of government regulation independent of the facts of a particular case.21 21.Id. at 450–52.Show More

The key decision for Professor Bray is Frothingham v. Mellon,22 22.262 U.S. 447 (1923).Show More usually regarded as a case barring taxpayer standing under Article III, but one heavily dependent on limited equitable remedies.23 23.Bray, supra note 1, at 430–33.Show More As the Court reasoned:

The party who invokes the power must be able to show not only that the statute is invalid but that he has sustained or is immediately in danger of sustaining some direct injury as the result of its enforcement, and not merely that he suffers in some indefinite way in common with people generally.24 24.262 U.S. at 488.Show More

The implicit contrast is with Flast v. Cohen,25 25.392 U.S. 83 (1968).Show More which upheld taxpayer standing to challenge a statute that disbursed funds to religious schools allegedly in violation of the Establishment Clause.26 26.Id. at 83–84.Show More The plaintiffs sought to prevent any expenditure at all under the statute, relief that went far beyond any immediate benefit to the plaintiffs.

The leading response to Bray’s argument, and similar attempts to invoke historical limitations upon equitable remedies, is Mila Sohoni’s exhaustive examination of equity practice through the first half of the 20th century.27 27.See Sohoni, supra note 8, at 943–93.Show More She found a wide range of cases, in both the Supreme Court and the lower federal courts, that awarded or approved of universal injunctions. She took the position that, regardless of the policy questions raised by universal injunctions, the history of equitable remedies demonstrates that it is not a constitutional problem under Article III.28 28.Id. at 993–1008.Show More She, however, cuts off her historical inquiry in the middle of the 20th century.

The policy problems that surround universal injunctions, to the extent they are independent of constitutional problems, revolve around the disproportionate power they allow a single district judge to exercise. A universal injunction that inures to the benefit of nonparties elevates the status of a single judge’s decision to a level comparable to a decision of the Supreme Court. It truncates the development of different lines of authority and forces the case onto the agenda of the Supreme Court. It also creates a risk of inconsistent decisions by different lower courts and invites the plaintiff to go forum shopping for a judge likely to be favorable.29 29.For a survey of these problems, see Bray, supra note 1, at 457–65.Show More By contrast, where parties seek to consolidate multi-district litigation through a change in venue, the choice of the transferee district lies with the panel on multidistrict litigation.30 30.28 U.S.C. § 1407(a), (b).Show More The district judge becomes an overseer of government at every level, regardless of the district or circuit boundaries that circumscribe the precedential effect of decisions by the lower federal courts.31 31.Bray, supra note 1, at 465.Show More

Some argue for universal injunctions based on judicial review of administrative action under the Administrative Procedure Act (APA).32 32.5 U.S.C. § 706; Sohoni, supra note 8, at 991–93.Show More It does create a kind of parity between the actions of the executive branch and the remedy available in the judicial branch. National or regional measures taken by the executive can be met by remedies of equal scope from the judiciary. A gap remains, however, between invalidating administrative action by depriving it of any force in the proceedings before the reviewing court and enjoining reliance upon it in any other proceedings.33 33.John Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies, 37 Yale J. L. & Reg. Online Bull., 37 (2020).Show More The APA authorizes courts to “set aside” agency action in the first sense by disregarding it, but it does not authorize injunctions to prevent reliance upon it generally.34 34.Id.Show More More generally, the limitation on federal jurisdiction to “cases and controversies” negates any implied principle of parity between executive and judicial action. Federal judges hand down their decisions only within the confines of a concrete case or controversy.

The preclusive effect of universal injunctions also contravenes the limits on non-mutual issue preclusion against the federal government, an extension of preclusion that the Supreme Court has explicitly prohibited.35 35.United States v. Mendoza, 464 U.S. 154, 158 (1984).Show More Indeed, to the extent the decision represents a binding judgment, it is binding only upon the defendant. The nonparties who benefit from the injunction are bound by an unfavorable decision only if they are in privity with the plaintiff.36 36.Taylor v. Sturgell, 553 U.S. 880, 892–95 (2008).Show More As will be discussed in Part II, a universal injunction revives the practice of “one-way intervention,” rejected in amendments to Federal Rule 23 in 1966.37 37.See infra notes 49–59 and accompanying text.Show More

These problems have elicited ad hoc responses, such as inquiring whether the injunction is necessary to secure equal treatment of nonparties; or limiting the geographical scope of the injunction to a federal judicial district or circuit; or requiring decisions from at least three federal circuits as evidence of settled law; or barring injunctions that resulted from forum shopping for a favorably inclined judge.38 38.Trammel, supra note 4, at 103–13; Sohoni, supra note 8, at 995.Show More Professor Sohoni tentatively suggests reinstating the practice of constituting three-judge district courts, allowing only those courts to issue universal injunctions with direct appeal to the Supreme Court.39 39.Sohoni, supra note 8, at 995.Show More In making this suggestion, she neglects the complications that arose when three-judge district courts were widely available, raising questions about whether the court was properly convened and the effect of summary affirmances by the Supreme Court.40 40.Robert L. Stern & Eugene Gressman, Supreme Court Practice, For Practice in the Supreme Court of the United States 66–67 (4th ed. 1969).Show More This back-to-the-future approach accords with her reliance on past equity practice in issuing universal injunctions for the benefit of nonparties. But as Part II discusses in detail, much has happened since the Federal Rules displaced the Equity Rules in 1938 and altered the procedures that apply in equity to unite with actions at law. While Professor Sohoni finds no ironclad rule that equitable relief must be limited to the parties, she does not examine the question of who can be made parties under modern procedure.

II. From Rules of Equity to Rules of Civil Procedure

Before 1938, federal equity practice supported a range of representative suits. Equity Rule 38 codified this practice:

When the question is one of common or general interest to many persons constituting a class so numerous as to make it impracticable to bring them all before the court, one or more may sue or defend for the whole.41 41.Federal Rule of Equity 38, 226 U.S. 649, 659 (1912).Show More

A few of these provisions have survived in Federal Rule 23, such as numerosity—“the class is so numerous that joinder of all members is impracticable”—and commonality—“there are questions of law or fact common to the class.”42 42.Fed. R. Civ. P. 23(a)(1), (2).Show More Yet most of the provisions in the current version of Rule 23 have no antecedent in Equity Rule 38, such as the provision for certification of a class action “[a]t an early practicable time.”43 43.Id. 23 (c)(1)(A).Show More In contrast to the short paragraph of the equity rule, the current version of the rule has eight subsections, most with subdivisions, many of which often are further subdivided.44 44.See Id. 23 (a)–(h).Show More It is also a long way from the equity rule to the complexity of class action practice today.

The process of elaboration began with the drafting and approval of the original Rule 23. This process changed the language of Equity Rule 38 and made it into a separate subsection (a), adding subsection (b) on derivative actions, and subsection (c) on notice.45 45.Fed. R. Civ. P. 23 advisory committee’s note to 1938 amendment, 56–60 (1937).Show More The most controversial change was the addition of three subdivisions to subsection (a), spelling out commonality in terms of “the character of the right sought to be enforced.” As the terminology evolved, class actions could be “true,” where the right is “joint or common”; “hybrid,” where the right is “several” and involves “specific property”; and “spurious,” where the right is “several, and there is a common question of law or fact affecting the several rights and a common relief is sought.”46 46.Zechariah Chafee, Jr., Some Problems of Equity 245–46 (1950).Show More Dividing class actions along these lines attracted criticism for relying on “outworn categories of rights,” not fitting the class actions recognized in current practice, and failing to “correspond to any essential differences in the handling or effect of class suits.”47 47.Id. at 245–47.Show More Zechariah Chafee, a prominent critic of the original Rule 23, would have reduced subsection (a) to a slight variant of Equity Rule 38, jettisoning the three subdivisions entirely.48 48.Id. at 249, 281.Show More

The amendments to Rule 23 took the opposite course, driven by concerns over notice to class members in spurious class actions. The Advisory Committee in 1966 focused on the problems created by “one-way intervention” in those class actions, where the absent class members receive notice only after judgment has been entered.49 49.Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment, 99, 104–06 (1966).Show More Although the committee hesitated to address preclusion, it recognized that it would be difficult to bind class members to a losing judgment in the absence of notice. But if they could still take advantage of a favorable judgment, the party opposing the class was left at a glaring tactical disadvantage. That party could not assert preclusion against absent class members based on a judgment unfavorable to the class, but absent class members could assert preclusion against the opposing party based on a favorable judgment. And instead of eliminating the subdivisions that identified different forms of class actions, the revisers preserved and altered them, moving them to a new subsection (b). That subsection contained the now familiar division of class actions by necessity under (b)(1), in which individual actions would work to the prejudice of the class or the party opposing the class; (b)(2) for class actions for injunctive or declaratory relief for the benefit of the class as a whole; and (b)(3) for class actions for damages and other forms of individual relief.50 50.Id. at 98, 100–04.Show More

To eliminate the problem of one-way intervention in all class actions and to clarify the basis for preclusion by a class action judgment, the revised rule required an early decision on certification and a description of the class in any resulting judgment.51 51.Id. at 104–06. (“Under proposed subdivision (c)(3), one-way intervention is excluded; the action will have been early determined to be a class or nonclass action, and in the former case the judgment, whether or not favorable, will include the class, as above stated.”).Show More The current provisions elaborate upon those adopted in 1966, but they take the same basic form, which is worth quoting at length:

(c) CERTIFICATION ORDER; NOTICE TO CLASS MEMBERS; JUDGMENT; ISSUES CLASSES; SUBCLASSES.

(1) Certification Order.

(A) Time to Issue. At an early practicable time after a person sues or is sued as a class representative, the court must determine by order whether to certify the action as a class action.

(B) Defining the Class; Appointing Class Counsel. An order that certifies a class action must define the class and the class claims, issues, or defenses, and must appoint class counsel under Rule 23(g). . . .

(3) Judgment. . . .

(A) for any class certified under Rule 23(b)(1) or (b)(2), include and describe those whom the court finds to be class members; and

(B) for any class certified under Rule 23(b)(3), include and specify or describe those to whom the Rule 23(c)(2) notice was directed, who have not requested exclusion, and whom the court finds to be class members.52 52.Fed. R. Civ. P. 23(c)(1)(A)–(B), (c)(3)(A)–(B).Show More

These provisions rejected practice under the old rule, which closely resembled the current practice of issuing universal injunctions. An early determination of who was a party to the class action was required, as opposed to the late inclusion of nonparties by one-way intervention or at the remedy stage of the litigation. Those who might benefit from, and be bound by, the class action had to be made known early and had to be specified in the judgment; a general injunction issued at the end of the case would not do.

The crucial provision is in subdivision (c)(1)(A), stating that “the court must determine” whether the case proceeds as a class action “[a]t an early practicable time after a person sues or is sued as a class representative.”53 53.Id. 23(c)(1)(A) (emphasis added).Show More A plaintiff who seeks a universal injunction is suing “as a class representative.” This way of formulating the plaintiff’s role is not some recent invention. Chafee devotes two whole chapters of his book, Some Problems of Equity, to class actions under the heading of “Representative Suits.”54 54.Chafee, supra note 46, at 199–295.Show More He published this book in 1950 and it served as a resource for revisers of Rule 23 in 1966, with prominent citations in their advisory committee notes.55 55.Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment, 98, 102-03, 104, 105, 106 (1966).Show More They adopted his critique of the original rule, but not his proposal to return to a variation on the old equity rule.

Advocates of universal injunctions without class certification might point to the introductory phrase in Rule 23, which seems to contain permissive language that does not require a class action but allows one: “One or more members of a class may sue or be sued as representative parties on behalf of all members only if” the requirements in the rule are met.56 56.Id. 23(a) (emphasis added).Show More But this resort to an isolated phrase neglects the logical structure of the rule, which sets out the necessary and sufficient conditions for maintaining a class action. Replacing “may” with “must” would seemingly command named plaintiffs to commence litigation “as representative parties,” when they might prefer to bring individual actions and seek only individual relief. This conclusion is confirmed by the use of “may” in the introductory phrase in subdivision (b): “A class action may be maintained if Rule 23(a) is satisfied and if” the requirements of one of the subdivisions of (b) is satisfied.57 57.Id. 23(b).Show More

The Supreme Court has made clear that there is nothing permissive about the duty to make a decision on certification imposed by subdivision (c)(1)(A). In East Texas Motor Freight System Inc. v. Rodriguez,58 58.431 U.S. 395, 404–05 (1977).Show More one reason the Court gave for reversing certification of a class action was the plaintiffs’ failure to move for certification prior to trial. Even if the district court had a duty sua sponte to make the certification decision, the plaintiffs’ failure to do so established that they were not adequately representing the class. Transposed to the context of universal injunctions, plaintiffs cannot engage in artful pleading to refuse to seek class certification or to wait until the remedy stage to request a universal injunction. To delay in this manner is equivalent to delaying a request for class certification and it demonstrates that the case should be treated as an individual action with an individualized remedy.

To dispense with certification is equivalent to dispensing with all of the detailed requirements for maintaining a class action under Rule 23. Plaintiffs who seek a universal injunction without certification simply invite the court to ignore those requirements. The current version of the rule, and its predecessor in 1966, could not have been drafted with this option for wholesale evasion in mind. Here again, the Advisory Committee in 1966 deviated from Chafee’s comment on earlier equity practice: “The very identity of interests which made it easy to bring everybody in, also made it somewhat superfluous to do so.”59 59.Chafee, supra note 46, at 201 (discussing the evolution in equity from bills of peace to representative suits).Show More Instead of going back to equity, the Advisory Committee elaborated at length on the provisions for class actions under Rule 23.

Critics of certification as a prerequisite to universal relief might appeal to the prohibition in the Rules Enabling Act that the “rules shall not abridge, enlarge or modify any substantive right.”60 60.28 U.S.C. § 2072(b).Show More If equity authorizes courts to issue universal injunctions, so the argument goes, then it does so as a matter of substantive law and the Federal Rules cannot infringe upon the plaintiffs’ right to obtain such an injunction. An argument along these lines, however, misconceives the relationship between substance and procedure. Certification under Rule 23(b)(2) presupposes “that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”61 61.Fed. R. Civ. P. 23(b)(2).Show More If such equitable relief could not possibly be issued, certification under subdivision (b)(2) has to be denied. The rule no more limits the equitable power than Rule 8(a)(2), requiring “a short and plain statement of the claim showing that the pleader is entitled to relief,”62 62.Id. 8(a)(2).Show More limits the substantive claim asserted by the plaintiff. Both of these provisions, and many others in the Federal Rules, define the conditions under which substantive rights can be asserted in litigation. This is precisely the function of procedural rules: to regulate the process for enforcing substantive rights.63 63.Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 407–08 (2010) (opinion of Scalia, J.).Show More

III. The Burdens and Benefits of Certification

If the argument for certifying a class is so compelling, how did courts come to dispense with it? The answer returns to the history of Rule 23 and the prior equity practice of issuing universal injunctions. That practice had to be reconciled with the division of class actions under the original version of Rule 23 into true, hybrid, and spurious.64 64.Chafee, supra note 46, at 246–47.Show More Absent a joint right shared by the entire class or litigation concerning a common question with regard to a particular piece of property, the first two categories would not apply at all. That left most litigation over universal injunctions in the category of spurious class actions.

Yet, certifying a spurious class action did not yield much in the way of benefits. The court still had to work its way through the three-part division of class actions in an overly conceptual framework.65 65.Id.Show More And if the class were certified as spurious, it still permitted one-way intervention by class members. They could take advantage of a judgment favorable to the class and avoid being bound by an unfavorable judgment. The same would be true of a universal injunction in the absence of certification. Nothing much seemed to be gained by working through the complications of the original Rule 23.

It comes as no surprise that courts avoided certification and the precedential force of the prior equity practice retained its strength. The amendments to Rule 23 in 1966 should have altered the balance between the rule and equity practice, but they did not. The momentum of established precedent has carried over in several circuits, imposing a requirement of “necessity” as a preliminary step in deciding whether to certify a class action.66 66.E.g., Galvan v. Levine, 490 F.2d 1255, 1261–62 (2d Cir. 1973); Sandford v. R.L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir. 1978).Show More Only the Seventh Circuit has unequivocally rejected this approach.67 67.Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978).Show More The changes made by the 1966 amendments, as discussed earlier, disapproved of one-way intervention, required early determination of certification, and created a special subdivision for class actions seeking declaratory and injunctive relief. Perhaps the uncertainty surrounding the new version of the rules led litigants and courts to avoid it.68 68.Marvin E. Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39, 39 (1967) (The revised rule “tends to ask more questions than it answers.”).Show More After several decades of practice under the rule, those concerns should have dissipated.

Some critics of required certification pronounce it to be “formalistic,”69 69.Morley, supra note 5, at 634.Show More and most lower federal courts have dispensed with certification when it is not needed.70 70.“[T]he need requirement now seems well-accepted as an appropriate consideration when certifying a Rule 23(b)(2) action.” 7AA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1785.2 n.5 (5th ed. 2005 & Supp. 2021).Show More This label calls attention to the burdens of maintaining a class action, in terms of certifying the class, assuring fairness to class members, selecting class counsel, managing the class action, and approving any settlement.71 71.Fed R. Civ. P. 23(c)–(g).Show More These costs are borne by the parties, their attorneys, and the judge. Yet they yield benefits in terms of defining the class affected by the judgment, determining the scope of the judgment itself, and protecting against inadequate representation and collusive settlements.72 72.Id. 23(a)(4), (c)(3)–(4), (e)(2).Show More These benefits often go to the form that a certification order and a judgment take, but they are not limited to matters of form.

The foundational case on adequacy of representation under the Due Process Clause, Hansberry v. Lee,73 73.311 U.S. 32 (1940).Show More illustrates the need for careful attention to the certification and management of class actions. There, white homeowners tried to bind prospective Black homeowners and those who would sell to them by a judgment upholding a racially restrictive covenant. The interests of these two groups were directly adverse. The first group wanted segregation; the second wanted integration.74 74.Id. at 37–38.Show More Several of the requirements of Rule 23 are directed to the same end of protecting the class. Transposed to recent cases on universal injunctions, adequacy of representation appears to be a significant constraint on judicial power. In Texas v. United States,75 75.86 F. Supp. 3d 591, 604 (S.D. Tex.), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (mem.).Show More for instance, it is hard to believe that every state would have followed Texas in opposing the Obama Administration’s immigration policy with respect to “dreamers.” An injunction for the benefit of Texas, or perhaps limited geographically to Texas, has far more plausibility than one that applied nationwide. Just over half the states joined Texas in claiming that the federal immigration policy had a net adverse effect upon them.76 76.Id.at 604.Show More The other half did not want the injunction and a third opposed it,77 77.Brief of the States of Washington et al. as Amici Curiae Supporting Petitioners at 1, United States v. Texas, S. Ct. 2271 (2016) (mem.) (No. 15-674) 2016 WL 922867.Show More, yet it applied in their territory to the same extent as in Texas.

Class actions for injunctions under subdivision 23(b)(2) impose significantly lighter burdens than those, usually for damages, under subdivision 23(b)(3). The prerequisites for certification are simpler and less onerous under subdivision (b)(2), which requires only that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.”78 78.Fed. R. Civ. P. 23 (b)(2).Show More By contrast, subdivision (b)(3) requires a detailed inquiry into whether the questions common to the class predominate over individual issues and that a class is superior to other means of adjudication.79 79.Id. 23(b)(3).Show More Likewise the provisions for notice to the class are simply discretionary under subdivision (b)(2), while they are mandatory for all identifiable class members under subdivision (b)(3).80 80.Id. 23(c)(2).Show More For these reasons, plaintiffs usually prefer certification under (b)(2) to certification under (b)(3), as in the well-known case of Wal-Mart Stores, Inc. v. Dukes.81 81.564 U.S. 338, 345 (2011).Show More Given the more lenient standards for certification under (b)(2), there is no need to give plaintiffs the further option of not seeking certification at all.

Some decisions have dispensed with the need for certification for reasons entirely independent of the requirements of Rule 23. They have relied on the agreement by the party opposing the class to be bound by a universal injunction. This concession goes to the remedy stage of the litigation, to the acceptance that any relief awarded to the plaintiff extends to everyone similarly situated. Judge Friendly took this approach in his influential opinion in Galvan v. Levine,82 82.490 F.2d 1255, 1257, 1261 (2d Cir. 1973).Show More a case challenging state limits on unemployment benefits. The state had already withdrawn its policy of denying benefits to workers from Puerto Rico before judgment was entered.83 83.Id. at 1261. For further discussion of this case, see Bray, supra note 1, at 441–43.Show More In that posture of the case, Judge Friendly concluded, certification of a class was “largely a formality, at least for the plaintiffs.”84 84.Galvan, 490 F.2d at 1261.Show More But so was entry of a statewide injunction, since the state no longer contested eligibility for unemployment benefits to individuals in the plaintiffs’ position. By the time the case came before Judge Friendly on appeal, the state had effectively waived any objection to the scope of the injunction, making it difficult to reverse the district court’s judgment on this ground.

Nevertheless, even in cases where the defendant does not contest the scope of the relief requested, certification has its uses. It prevents the party opposing the class from changing positions, for instance, if a new government comes into office. There is no apparent reason to postpone resolution of such issues to the enforcement stage of the case, when they can be resolved at the outset. They would also be easily resolved if the party opposing the class agrees that the case should proceed as a class action. The decision to certify the class and issues of managing the class action become much easier to resolve once the parties agree on the scope of the action—if, indeed, these issues are contested at all.

Requiring certification forces an early decision on who can benefit from the litigation. The requirement of a decision “[a]t an early practicable time,”85 85.Fed. R. Civ. P.23(c)(1)(A).Show More comes long before the remedy stage of litigation, in which the presumption that the scope of the remedy should match the scope of the wrong might exert undue influence.86 86.Bray, supra note 1, at 467–68.Show More Rule 23 creates a more systematic structure for determining the scope of the injunction than the various ad hoc factors that have been proposed as limits: geographical restrictions based on the limits of the federal district or federal circuit; precedent in at least three circuits that supports the injunction; assuring equal treatment of all those who might benefit from the injunction.87 87.See supra note 38, and accompanying text.Show More Other proposals look to expanding the jurisdiction of three-judge district courts to handle universal injunctions, with direct review by the Supreme Court; and to relying upon judicial review under the Administrative Procedure Act, so that the scope of any court order matches the scope of executive action.88 88.See supra notes 32, 39, and accompanying text.Show More

The terms of Rule 23 retain enough flexibility to accommodate these considerations, assuming they are relevant, or if Congress acts to amend the relevant statutes. The rule itself does not prevent certification of class actions on a national, regional, or state-wide scale. The Supreme Court, for instance, upheld a nationwide class action in Califano v. Yamasaki.89 89.442 U.S. 682, 702–03 (1979).Show More Whether other cases can be certified on such a large scale depends on whether the requirements of the rule are met. As the Supreme Court has emphasized, “careful attention to the requirements of Fed. Rule Civ Proc. 23 remains nonetheless indispensable.”90 90.East Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. 395, 405 (1977).Show More The availability of universal injunctions need not be addressed as a question of all or nothing. Indeed, even if a class action is certified, the court still must address the question of appropriate relief, which might, or might not, result in issuance of a broad injunction. As an initial matter, however, the scope of an injunction must be addressed for what it is: a question of joinder of parties.

Conclusion

The historical argument for universal injunction has, paradoxically, a curiously anachronistic quality. A detailed look at the historical record establishes the practice of issuing such injunction as a matter of equity. A detailed look at the Federal Rules of Civil Procedure makes this practice subject to procedural rules on joinder. Perhaps after 1938, but certainly after 1966, Rule 23 changed the procedural landscape surrounding equity practice, no matter how much it previously favored universal injunctions without joinder. It is time to follow the rule.

  1. * Distinguished Professor and Earle K. Shawe Professor of Employment Law, University of Virginia School of Law. ↑

  2. Samuel L. Bray, Multiple Chancellors: Reforming the National Injunction, 131 Harv. L. Rev. 417, 418–19 (2017) (recounting the litigation). ↑

  3. State of Texas v. United States, 21-cv-00003 (S.D. Tex. Feb. 23, 2021). The court enjoined a 100-day moratorium on deportations imposed by the Department of Homeland Security in the Biden Administration. ↑

  4. Fed. R. Civ. P. 23. ↑

  5. Alan Trammel, Demystifying Nationwide Injunctions, 98 Tex. L. Rev. 67, 77–78 (2019) (noting that due process protections in class action have “little to no bearing on most nationwide injunctions, though, in which the problematic questions concern the rights of nonparties”) (emphasis in original). ↑

  6. Michael T. Morley, Nationwide Injunctions, Rule 23(b)(2), and the Remedial Powers of the Lower Courts, 97 B.U. L. Rev. 615, 634 (2017) (“In short, certification under Rule 23(b)(2) is a formalistic gesture that neither limits the scope of a court’s discretion nor guarantees due process for putative class members.”). ↑

  7. Bray, supra note 1, at 469–81. ↑

  8. Id. at 464–65. ↑

  9. Mila Sohoni, The Lost History of the “Universal” Injunction, 133 Harv. L. Rev. 920, 982–93 (2020) (concluding her analysis with decisions from the 1930s and 1940s). ↑

  10. 86 F. Supp. 3d 591 (S.D. Tex.), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (mem.). ↑

  11. This program, Deferred Action for Parents of Americans and Lawful Permanent Residents, conferred benefits upon over four million individuals who are currently in the country without documentation, chiefly deferring any attempt to deport them. Texas v. United States, 86 F. Supp. 3d at 604. ↑

  12. Trump v. Hawaii, 138 S. Ct. 2392 (2018). ↑

  13. Id. at 2425, 2427–29 (Thomas, J., concurring). ↑

  14. Id. at 2425. ↑

  15. Id. at 2424–25. ↑

  16. As occurred, for instance, in Galvan v. Levine, 490 F.2d 1255, 1257 (2d Cir. 1973), which concerned a statewide injunction against denial of unemployment benefits to certain workers from Puerto Rico. ↑

  17. Howard M. Wasserman, Congress and Universal Injunctions, 2021 Cardozo L. Rev. De Novo 187, 191 (2021). ↑

  18. Warth v. Seldin, 422 U.S. 490, 499 (1975) (“The Art. III judicial power exists only to redress or otherwise to protect against injury to the complaining party, even though the court’s judgment may benefit others collaterally.”). ↑

  19. A recent case generated multiple opinions in the district court, court of appeals, and the Supreme Court, eventually yielding the conclusion that the plaintiff had sufficiently alleged standing to move beyond the pleading stage of litigation. See Robins v. Spokeo, Inc., 2011 WL 597867 (C.D. Cal. 2011), rev’d, 742 F.3d 409 (9th Cir. 2014), vacated and remanded, 136 S. Ct. 1540 (2016), on remand, 867 F.3d 1108 (9th Cir. 2017), cert. denied, 138 S. Ct. 931 (2018). All this occurred even though Congress had clearly granted the plaintiff the right to sue. 136 S. Ct. at 1545. ↑

  20. Bray, supra note 1, at 437–45. ↑

  21. Id. at 424–27. ↑

  22. Id. at 450–52. ↑

  23. 262 U.S. 447 (1923). ↑

  24. Bray, supra note 1, at 430–33. ↑

  25. 262 U.S. at 488. ↑

  26. 392 U.S. 83 (1968). ↑

  27. Id. at 83–84. ↑

  28. See Sohoni, supra note 8, at 943–93. ↑

  29. Id. at 993–1008. ↑

  30. For a survey of these problems, see Bray, supra note 1, at 457–65. ↑

  31. 28 U.S.C. § 1407(a), (b). ↑

  32. Bray, supra note 1, at 465. ↑

  33. 5 U.S.C. § 706; Sohoni, supra note 8, at 991–93. ↑

  34. John Harrison, Section 706 of the Administrative Procedure Act Does Not Call for Universal Injunctions or Other Universal Remedies, 37 Yale J. L. & Reg. Online Bull., 37 (2020). ↑

  35. Id. ↑

  36. United States v. Mendoza, 464 U.S. 154, 158 (1984). ↑

  37. Taylor v. Sturgell, 553 U.S. 880, 892–95 (2008). ↑

  38. See infra notes 49–59 and accompanying text. ↑

  39. Trammel, supra note 4, at 103–13; Sohoni, supra note 8, at 995. ↑

  40. Sohoni, supra note 8, at 995. ↑

  41. Robert L. Stern & Eugene Gressman, Supreme Court Practice, For Practice in the Supreme Court of the United States 66–67 (4th ed. 1969). ↑

  42. Federal Rule of Equity 38, 226 U.S. 649, 659 (1912). ↑

  43. Fed. R. Civ. P. 23(a)(1), (2). ↑

  44. Id. 23 (c)(1)(A). ↑

  45. See Id. 23 (a)–(h). ↑

  46. Fed. R. Civ. P. 23 advisory committee’s note to 1938 amendment, 56–60 (1937). ↑

  47. Zechariah Chafee, Jr., Some Problems of Equity 245–46 (1950). ↑

  48. Id. at 245–47. ↑

  49. Id. at 249, 281. ↑

  50. Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment, 99, 104–06 (1966). ↑

  51. Id. at 98, 100–04. ↑

  52. Id. at 104–06. (“Under proposed subdivision (c)(3), one-way intervention is excluded; the action will have been early determined to be a class or nonclass action, and in the former case the judgment, whether or not favorable, will include the class, as above stated.”). ↑

  53. Fed. R. Civ. P. 23(c)(1)(A)–(B), (c)(3)(A)–(B). ↑

  54. Id. 23(c)(1)(A) (emphasis added). ↑

  55. Chafee, supra note 46, at 199–295. ↑

  56. Fed. R. Civ. P. 23 advisory committee’s note to 1966 amendment, 98, 102-03, 104, 105, 106 (1966). ↑

  57. Id. 23(a) (emphasis added). ↑

  58. Id. 23(b). ↑

  59. 431 U.S. 395, 404–05 (1977). ↑

  60. Chafee, supra note 46, at 201 (discussing the evolution in equity from bills of peace to representative suits). ↑

  61. 28 U.S.C. § 2072(b). ↑

  62. Fed. R. Civ. P. 23(b)(2). ↑

  63. Id. 8(a)(2). ↑

  64. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 407–08 (2010) (opinion of Scalia, J.). ↑

  65. Chafee, supra note 46, at 246–47. ↑

  66. Id. ↑

  67. E.g., Galvan v. Levine, 490 F.2d 1255, 1261–62 (2d Cir. 1973); Sandford v. R.L. Coleman Realty Co., 573 F.2d 173, 178 (4th Cir. 1978). ↑

  68. Vergara v. Hampton, 581 F.2d 1281, 1284 (7th Cir. 1978). ↑

  69. Marvin E. Frankel, Some Preliminary Observations Concerning Civil Rule 23, 43 F.R.D. 39, 39 (1967) (The revised rule “tends to ask more questions than it answers.”). ↑

  70. Morley, supra note 5, at 634. ↑

  71. “[T]he need requirement now seems well-accepted as an appropriate consideration when certifying a Rule 23(b)(2) action.” 7AA Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1785.2 n.5 (5th ed. 2005 & Supp. 2021). ↑

  72. Fed R. Civ. P. 23(c)–(g). ↑

  73. Id. 23(a)(4), (c)(3)–(4), (e)(2). ↑

  74. 311 U.S. 32 (1940). ↑

  75. Id. at 37–38. ↑

  76. 86 F. Supp. 3d 591, 604 (S.D. Tex.), aff’d, 809 F.3d 134 (5th Cir. 2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (mem.). ↑

  77. Id. at 604. ↑

  78. Brief of the States of Washington et al. as Amici Curiae Supporting Petitioners at 1, United States v. Texas, S. Ct. 2271 (2016) (mem.) (No. 15-674) 2016 WL 922867. ↑

  79. Fed. R. Civ. P. 23 (b)(2). ↑

  80. Id. 23(b)(3). ↑

  81. Id. 23(c)(2). ↑

  82. 564 U.S. 338, 345 (2011). ↑

  83. 490 F.2d 1255, 1257, 1261 (2d Cir. 1973). ↑

  84. Id. at 1261. For further discussion of this case, see Bray, supra note 1, at 441–43. ↑

  85. Galvan, 490 F.2d at 1261. ↑

  86. Fed. R. Civ. P.

     

    23(c)(1)(A). ↑

  87. Bray, supra note 1, at 467–68. ↑

  88. See supra note 38, and accompanying text. ↑

  89. See supra notes 32, 39, and accompanying text. ↑

  90. 442 U.S. 682, 702–03 (1979). ↑

  91. East Texas Motor Freight System Inc. v. Rodriguez, 431 U.S. 395, 405 (1977). ↑

Black Women’s Hair and Natural Hairstyles in the Workplace: Expanding the Definition of Race Under Title VII

Despite the Equal Employment Opportunity Commission’s (“EEOC”) interpretation of Title VII as including cultural characteristics often associated with race or ethnicity, Black women have not successfully litigated the freedom to wear their hair in natural hairstyles in the workplace. Courts have held that racial discrimination in the workplace must be based on immutable characteristics to trigger Title VII. Black women who deviate from the norm face significant barriers in the workplace. The bias against Black women’s hair, which has been perceived as unprofessional, adds additional burdens on Black women leading to pressure to conform to Eurocentric beauty standards. This pressure has had significant detrimental financial, health, and professional implications for Black women. This Essay contributes to debates on employment discrimination by arguing for the expansion of the definition of Title VII’s racial discrimination to include natural hair and natural hairstyle discrimination following the Supreme Court’s reasoning in Title VII sex discrimination cases. This Essay outlines the history of Black hair, its meaning in Black culture, and how implicit bias against Black hair has negatively affected Black women in the workplace. This Essay also provides a description of seminal cases on Black Women’s hair in the workplace and the immutability standard’s flaws. Lastly, this Essay makes a case for expanding Title VII’s definition of racial discrimination, drawing on the principle of reasonably comparable evils.

Introduction

Upon entering the professional world, students are often told to be themselves because interviews are a way for firms to determine whether they will fit into the firms’ culture. Implicit or unconscious bias plays a role in determining how they will be judged in the workplace context. They are encouraged to be themselves but do not understand that this “self” will be judged based on proximity to the accepted norm––straight white men. Deviating from the norm can be a liability in the workplace. In order to penetrate influential networks and take advantage of promotion opportunities, a person has to be perceived as “fitting in” with the dominant firm culture.1 1.Ashleigh Shelby Rosette & Tracy L. Dumas, The Hair Dilemma: Conform to Mainstream Expectations or Emphasize Racial Identity, 14 Duke J. Gender L. & Pol’y 407, 412 (2007) (explaining that socio-psychology research has provided strong evidence showing that being viewed as different can be a liability in the workplace); Steven Reidy & Meher Kanigiri, How Are Ethnic Hairstyles Really Viewed in the Workplace?, Cornell Univ. ILR School (2016) (explaining that the more someone is perceived as “fitting in” with the firm culture “the better their workplace outcomes, and the greater the degree of deviation from the group the worse the outcome,” and thus workers whose identity differs from the dominant firm culture face two choices: assimilating to the dominant firm culture or being excluded).Show More Additionally, how others view them has implications on how their non-visual qualities are assessed, including their ability to do the work assigned to them or how professional they look.

For Black women, who differ from this norm because of their skin color and gender, being themselves includes bringing their natural hair to these firms.2 2.Ra’Mon Jones, What the Hair: Employment Discrimination Against Black People Based on Hairstyles, 36 Harv. BlackLetter L.J. 27, 29 (2020) (defining natural hair “as hair that has not been altered by chemical straighteners, including relaxers and texturizers”).Show More Black women’s hairstyle choices can exacerbate the perceptions of dissimilarity or deviation from the norm.3 3.See Rosette & Dumas, supra note 1, at 413.Show More Many Black women know that the more different they appear to be, the more “uncomfortable” their white colleagues will be with them, and the harder it will be for them to achieve full acceptance at work.4 4.Id. at 412.Show More Hence, Black women are routinely motivated to achieve the looks of their white counterparts.5 5.Id.; seeJena McGregor, More States Are Trying to Protect Black Employees Who Want to Wear Natural Hairstyles at Work, Wash. Post (Sept. 19, 2019), https://www.washingtonpost.com/business/2019/09/19/more-states-are-trying-protect-black-employees-who-want-wear-natural-hairstyles-work/ [https://perma.cc/S26M-ABL6] (noting that Minda Harts, founder of a career development company for women of color, stated that she wears her hair straight 99 percent of the time because she has seen how others look upon clients wearing braids and natural hairstyles in corporate America).Show More Black hair texture is a physical characteristic and ethnic indicator of African descent, different from all other races’ hair because of its shape and composition.6 6.Kim Carter, Workplace Discrimination and Eurocentric Beauty Standards, 36 GPSOLO 36, 36 (2019); Venessa Simpson, What’s Going on Hair?: Untangling Societal Misconceptions that Stop Braids, Twists, and Dreads from Receiving Deserved Title VII Protection, 47 Sw. L. Rev. 265, 265 (2017).Show More However, throughout history, Black hair textures and natural hairstyles have been considered “unprofessional,” “unkempt,” and “messy.”7 7.See Carter, supra note 6, at 36.Show More

As a young Black woman born and raised in Cameroon, a majority Black country in Africa, I had never considered my natural hair or protective hairstyles,8 8.“Protective hairstyles” are also called natural hairstyles. They can be used interchangeably.Show More such as box braids, cornrows, and Senegalese twists, to be unprofessional, unkempt, and messy. They have always been a part of my identity. As a young girl, a lady would “cornrow” or “thread” my hair every two weeks on Saturday mornings, sometimes adding beads to the hairstyle.9 9.Cornrows are also called plaits. Threading one’s hair means wrapping one’s hair in thread.Show More As I grew older, I was able to get box braids and other natural hairstyles. Changing one’s hair was the norm. Adorning one’s hair with beads, cowries, scarves, and other accessories was not unconventional. No one would frown upon me for wearing cornrows for two weeks and then wearing my hair in braids the following weeks. Women in the workforce in Cameroon would always wear their hair in intricate hairstyles.10 10.The historian John Thornton wrote that when Europeans first came into contact with western Africa in the late fifteenth century, they remarked on the many hairstyles African wore. There were “various combinations of braids, plaits . . . shaved areas, and areas cut to different lengths . . . creating a stunning effect.” See Shane White & Graham White, Slave Hair and African American Culture in the Eighteenth and Nineteenth Centuries, 61 J. Southern Hist. 45, 51 (1995).Show More It is not until I moved to the United States that I realized that others might perceive my hair as unprofessional, unkempt, and messy.

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination on the basis of “race, color, religion, sex or national origin.”11 11.Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 254.Show More Workplace discrimination based on natural hair and natural hairstyles is not one of the protected classes enumerated in Title VII. Because courts have determined that racial discrimination in the workplace must be based on immutable characteristics to trigger Title VII, a Black woman who is discriminated against because she wears her hair in a natural hairstyle is not protected under the law in most states.12 12.See infraSection III.C.Show More Afros have been the only recognized “immutable” hairstyle that a Black woman can wear in the workplace.

This Essay argues that the Supreme Court should expand the definition of racial discrimination under Title VII to include natural hair and natural hairstyle discrimination, dropping the immutability standard. Part I provides a brief history of Black hair and its meaning in Black cultures and explores the prejudice against Black women’s hair in the workplace. Part II provides background information on Title VII of the Civil Rights Act of 1964 and discusses prominent case precedent establishing that Title VII’s protections against racial discrimination in the workplace did not extend to hair discrimination against Black women. Part II also addresses the Equal Employment Opportunity Commission’s (EEOC) interpretation of racial discrimination under Title VII, the immutability standard used by courts, and objections to the standard. Lastly, Part III describes Title VII discrimination cases and the Supreme Court’s expansion of the definition of Title VII’s sex discrimination through a series of seminal sex discrimination cases. Additionally, Part III applies the Supreme Court’s reasoning in Title VII sex discrimination cases to hair discrimination, adopting the “reasonably comparable evils” principle enunciated in these cases to argue for the expansion of the definition of racial discrimination under Title VII.

I. Black Hair: its Meaning in Black Culture and Prejudice Against Black Women’s Hair in the Workplace

A. Black Hair History and its Meaning in Black Culture

In African civilizations, hair served a broad range of purposes, including aesthetic, defining social status, class distinction and identification, enhancing self-image and esteem, and cultural and religious purposes.13 13.See Sharon Adetutu Omotoso, Gender and Hair Politics: An African Philosophical Analysis, 12 J. Pan African Stud. 5, 5 (2018); Ciera Berkemeyer, New Growth: Afro-Textured Hair, Mental Health, and the Professional Workplace, 44 J. Legal Prof. 279, 284 (2020); see also Rumeana Jahangir, How Does Black Hair Reflect Black History?, BBC News (May 31, 2015), https://www.bbc.com/news/uk-england-merseyside-31438273 [https://perma.cc/‌XZF2-UUN2]; White & White, supra note 10, at 49;Reidy & Kanigiri, supra note 1.Show More It is the texture of African hair that allowed it to be designed and shaped in different ways.14 14.See White & White, supra note 10, at 50.Show More As an instrument for identity, ethnic group societies in West Africa, including the Mendes and the Mandingo, would use their hair to communicate among themselves.15 15.See Omotoso, supra note 13, at 9.Show More Hairstyles worn by community members helped identify a person’s age, rank in the community, ethnic identity, marital status, and religion, among other things.16 16.Id.Show More For example, powerful hunters and warriors would wear a patch of hair that would grow on a spot in the middle of their head infused with potent medicine to boost their body physically and spiritually.17 17.Id. at 10.Show More Black hair is also associated with religion and spirituality.18 18.See id. at 11; Berkemeyer, supra note 13, at 284.Show More Given its location at the highest point of the body, hair was said to be the channel for spiritual interaction with God.19 19.See Jahangir, supranote 13; seealsoOmotoso, supra note 13, at 12.Show More It was held that God would set the occasions that would then primarily determine hairstyles or hair patterns.20 20.See Omotoso, supra note 13, at 11.Show More In the Yoruba culture, children born with knotted hair (i.e., dreadlocks) were regarded as particularly favored with wealth.21 21.Id.Show More The child’s name would reflect that belief––“Dada-olowo eyo,” which means a person who is “divinely blessed with cowries (money) to attract wealth to their family.”22 22.Id.Show More Consequently, their head would not be washed during the naming ceremony because the hair had “special powers.”23 23.Id.Show More Even if the hair was washed, it would not be combed.24 24.Id.Show More

Exposure to Western cultures through the slave trade, colonialism, neo-colonialism, and globalization have transformed the meaning of Black hair in Africa and around the world, with African cultures coming to be viewed as unconventional and uncivilized.25 25.Id. at 12.Show More Slavery, a traumatic experience for Africans both physically and psychologically, contributed to the obliteration of Africans’ culture and identity.26 26.See Berkemeyer, supra note 13, at 284.Show More Europeans had traded and communicated with Africans for a long time and thus knew the complexity and the importance of Black hair.27 27.Tabora A. Johnson & Teiahsha Bankhead, Hair It Is: Examining the Experiences of Black Women with Natural Hair, 2 Open J. Soc. Sci. 86, 87 (2014).Show More European captors would shave African slaves’ heads to rob them of their humanity and break their spirit before they boarded slave ships or upon their arrival to the Americas.28 28.See Berkemeyer, supra note 13, at 284; Johnson & Bankhead, supra note 27, at 87.Show More Nevertheless, slaves would use their hair and hairstyles, specifically braids, as a carrier of messages to communicate the number of roads leading to freedom or places of meeting to escape servitude.29 29.See Berkemeyer, supra note 13, at 284.Show More They would also wear myriad hairstyles, engaging in the same cultural activity as their African counterparts.30 30.See White & White, supra note 10, at 51 (explaining that “[d]escriptions of hair arrangements contained in eighteenth-century runaway advertisements indicate that, within the obvious limits imposed by an oppressive system, African American slaves were engaged in the same cultural activity”).Show More

Eighteenth-century America viewed the physical traits of African Americans, including their hair, negatively.31 31.See White & White, supra note 10, at 58 (explaining that Black people “were not supposed to be proud of their hair, as they or their ancestors had been in Africa; any suggestion that they were would have sharply challenged complacent white cultural assumptions”).Show More “To have Black hair was to have slave hair,” which was considered to be the quintessential trait of “negro” status.32 32.Crystal Powell, Bias, Employment Discrimination, and Black Women’s Hair: Another Way Forward, 2018 BYU L. Rev. 933, 940–41 (2019) (explaining that “negro status” was the status of a “sub-human” with natural hair linked to non-human qualities, such as wool or bush).Show More Europeans did not consider Black hair to be hair at all.33 33.See Johnson & Bankhead, supra note 27, at 88.Show More After the abolishment of slavery in much of the world, including the United States, several Black people adjusted their hair to fit in with mainstream white society.34 34.See Jahangir, supranote 13.Show More To achieve that, Black people would smooth their hair texture, sometimes using chemical mixtures.35 35.See Omotoso, supra note 13, at 13–14 (noting that as of 2005, African-Americans spent $81.6 million per annum on chemical products (especially relaxers)); Chante Griffin, How Natural Black Hair at Work Became a Civil Rights Issue, JSTOR Daily (July 3, 2019), https://daily.jstor.org/how-natural-black-hair-at-work-became-a-civil-rights-issue/ [https://perma.cc/H9P4-6J79] (explaining that Madam C.J. Walker, a Black woman, invented the hot comb used to straighten Black hair, providing Black women an “avenue for increased societal acceptance in an era when minstrel songs mocked” African Americans’ hair texture).Show More With the 1960s Civil Rights Movement in the United States and protests against racial segregation and tyranny, the afro became a “symbol of rebellion, pride and empowerment,” and a prominent affirmation of African roots and Black beauty.36 36.Jahangir, supranote 13; see also Reidy & Kanigiri, supra note 1.Show More Colonialism caused a similar ambivalence toward Black hair in Africa. African men and women alike were caught in a predicament––they either had to assimilate to colonialist culture or adhere strictly to their cultural ideals.37 37.See Omotoso, supra note 13, at 12.Show More In modern Africa, recent trends show a tendency towards the use of hair extensions and chemical application among women due to continued exposure to Western culture through the media and globalization and the desire to gain social acceptance.38 38.See id. at 6.Show More Nonetheless, hair continues to serve many of its original purposes in Africa, and intricate African hairstyles continue to be seen across the continent.

Today, more than just serving its traditional purposes, African hairstyles have come to serve new purposes. Cutting one’s hair, once associated with the mourning of close relatives in some ethnic groups, has now become a time-saving hairstyle.39 39.See id. at 13.Show More Similarly, protective styles provide a way for Black women to protect their hair. Due to its texture and shape, Black hair is more susceptible to dryness and breakage than straight hair.40 40.See Berkemeyer, supra note 13, at 281 (explaining that “when follicles curve sebum is not able to travel the length of the hair. Because moisture is harder to retain in [curly and kinky] textures, the natural hair community often turns to protective styling to maintain healthy, moisturized hair” because it reduces continuous manipulation of hair, promotes growth retention, and protects the ends of the hair).Show More Protective styles enable Black women to maintain healthy and moisturized hair.41 41.See id. at 281.Show More They also allow Black women to reduce daily manipulation of their hair, which helps to prevent breakage.42 42.See Simpson, supra note 6, at 266.Show More

However, biases, implicit or explicit, toward African attributes continue to persist today, especially in the United States, resulting in Black people seeking to conform to European beauty standards by “straitening—or removing the kink from—[their] Black hair.”43 43.Carter, supra note 6, at 36.Show More Some people still consider Black hair to be “unacceptable, unprofessional and even ugly.”44 44.Reidy & Kanigiri, supra note 1; see also Rosette & Dumas, supra note 1, at 407.Show More Despite the Civil Rights Act of 1964, which ended segregation in public areas and prohibited employment discrimination, the social pressure to mimic European hair has persisted in the United States, affecting Black women’s hair-grooming decisions.45 45.See Griffin, supra note 35 (noting that the Act created the EEOC, which operates “as the lead enforcement agency in the area of workplace discrimination” and explaining that when the EEOC was introduced, the federal government’s main concern was to ensure that individuals be granted equal access to public workplaces—it did not envisage that Black hair would require equal access as well); Kalen Kennedy, My Natural Hair Is Unprofessional: The Impact of Black Hairstyles on Perceived Employment-Related Characteristics 8 (2020) (Master’s Thesis, Marquette University), https://epublications.marquette.edu/cgi/viewcontent‌.cgi?article=1580&context=theses_open [https://perma.cc/D9EN-H43Q](explaining that Black women are aware of the general public’s perceptions of their hair and go to great lengths to avoid being perceived negatively because of their hair and hairstyle. This includes “spending hours preparing their hair for work . . . spending large amounts of money on hair supplies, avoiding physical activity, or avoiding going outdoors when it is raining”).Show More

B. How Implicit Bias Against Black Hair Has Affected Black
Women in the Workplace

While not all employers have grooming policies that expressly address Black hair and protective hairstyles in the workplace, there remains a perception that Black hair is unprofessional and unkempt.46 46.See Berkemeyer, supra note 13, at 282 (stating that even where grooming policies do not specifically target Black women’s hair, implicit bias may play a significant role in crafting grooming policies that seem to be racially neutral but that adversely affect Black professionals and Black employees); Kennedy, supra note 45, at 8.Show More Multiple studies have documented implicit bias against Black hair.47 47.All the studies that I found related to implicit bias against Black hair. It would be rare for someone to make overtly racist comments about Black women’s hair in the workplace since that could open the door to liability in some states. Depending on whether the style is the Afro, it could also be a Title VII violation.Show More While a person’s unconscious beliefs may not always align with their conscious beliefs,48 48.See Laura McLaughlin, Self-Sabotaging: How Implicit Bias May Be Contributing to your “Can’t Find Any Women or Diverse Associates” Hiring Problem, ABA (Mar. 31, 2016),https://www.americanbar.org/groups/litigation/committees/commercial-business/practice/2016/self-sabotaging-how-implicit-bias-may-be-contributing-cant-find-any-women-diverse-associates-hiring-problem/ [https://perma.cc/77XL-23YF]; Melissa Little, Implicit Bias: Be an Advocate for Change, ABA, https://www.americanbar.org/groups/‌young_lawyers/publications/tyl/topics/professional-development/implicit-bias-be-an-advocate-for-change/ [https://perma.cc/WW7H-93PL] (last visited Nov. 18, 2020).Show More when it comes to Black women’s hair, the result remains the same––pressure on Black women to style their hair in a way that conforms to Eurocentric hair standards. Participants in a study were asked to link a hairstyle to different traits.49 49.See Kennedy, supra note .Show More They associated straightened hair with “clean, professional, feminine, and pretty,” afro with “wild, radical, and solidarity,” and dreadlocks with “drug use, ghetto, nasty, and gross.”50 50.Id. at 17.Show More

The Perception Institute’s “Good Hair” study examined the explicit and implicit views about Black women’s hairstyles.51 51.See Alexis McGill Johnson et al., Perception Inst., The “Good Hair” Study: Explicit and Implicit Attitudes Toward Black Women’s Hair (2017), https://perception.org/wp-content/uploads/2017/01/TheGood-HairStudyFindingsReport.pdf [https://perma.cc/592M-J8KE].Show More The study comprised of a national sample of 4,163 women and men who were asked about their opinions concerning textured hair––“hairstyles that exhibit a prototypically Black hair texture”––and smooth hair.52 52.Id. at 4; Kennedy, supra note , at 9.Show More The research’s findings revealed that participants viewed Black women’s textured hair as “less beautiful, sexy, attractive, and professional than smooth hair.”53 53.Id.Show More Women participants describe “good hair” as “straight, smooth, silky, and soft, not frizzy or ‘kinky.’”54 54.Johnson et al., supra note 51, at 11.Show More Black women perceived their textured hair as socially stigmatized, a view which is confirmed by white women’s devaluation of textured hair.55 55.See Kennedy, supra note 45, at 10; Johnson et al., supra note 51, at 6; see Rosette & Dumas, supra note 1, at 415–16 (Black women “are highly aware that their hairstyles may highlight the fact that they are different and thereby invite negative stereotypes about Black women . . . [and have had to] ‘shift so that their hair doesn’t blind their employers to their talent’” (citation omitted)).Show More Some women went as far as linking good hair to whiteness, “explaining that the ‘good hair’ standard is based on the type of hair that white women have, and is often hair that biracial women have.”56 56.Johnson et al., supra note 51, at 11.Show More Both Black and white women thought that afros are considered unprofessional in the United States, indicating a common understanding across races of the innate bias in the United States’ conceptualization of professionalism.57 57.See Kennedy, supra note , at 10.Show More Black women are also more likely to be sent home from the workplace because of their hair.58 58.The CROWN Act, The Official Campaign of the CROWN Act Led by the CROWN Coalition, https://www.thecrownact.com [https://perma.cc/UE6K-XA2X] (last visited May 8, 2021).Show More Similarly, the Hair Implicit Association Test’s findings indicated that while most participants, regardless of race, show an implicit bias against textured hair, white men and women displayed stronger levels of implicit bias against textured hair.59 59.SeeKennedy, supra note 45, at 10 (hairstyles were categorized as either textured (afro, dreadlocks, twist-out, braids) or smooth (straight, long curls, short curls, and pixie cut)); see also Johnson et al., supra note 51, at 13.Show More

II. Seminal Cases on the Issue of Black Women’s Hair in the Workplace and the Immutability Requirement

A. Black Women’s Inability to Successfully Litigate the Freedom to Wear Their Hair in Natural Hairstyles

Title VII of the Civil Rights Act of 1964 bans employment discrimination based on “race, color, religion, sex and national origin” in making hiring decisions, granting or denying promotions, or determining a person’s pay or benefits.60 60.See Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 254.Show More In its manual interpreting Title VII, the EEOC, the federal agency responsible for enforcing Title VII, prohibits employment discrimination against a person based on an immutable characteristic associated with race, such as hair texture or certain facial features.61 61.SeeFacts About Race/Color Discrimination, U.S. Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/laws/guidance/facts-about-racecolor-discrimination [https://perma.cc/MX5A-VGQQ] (last visited May 8, 2021).Show More The EEOC’s interpretation of Title VII also includes “cultural characteristics often linked to race or ethnicity,” such as grooming habits provided that “the cultural practice or characteristic does not materially interfere with the ability to perform job duties.”62 62.See id.; see also Equal Emp’t Opportunity Comm’n, Notice Concerning the Supreme Court’s Decision in Vance v. Ball State University, 133 S. Ct. 2434 (2013), https://www.eeoc.gov/laws/guidance/section-15-race-and-color-discrimination [https://perma.cc/7CFV-BXSG] (last visited May 8, 2021).Show More

Because of courts’ definition of race under Title VII as including immutable characteristics only and their rejection of cultural practices or characteristics arguments, Black women have not successfully litigated the freedom to wear their hair in natural hairstyles in the workplace.63 63.See Renee Henson, Are My Cornrows Unprofessional?: Title VII’s Narrow Application of Grooming Policies, and its Effect on Black Women’s Natural Hair in the Workplace, 1 Bus., Entrepreneurship & Tax L. Rev. 521, 523 (2017).Show More In Rogers v. American Airlines, Renee Rogers, a Black woman and long-term employee of American Airlines, filed a discrimination lawsuit under Title VII.64 64.527 F. Supp. 229 (S.D.N.Y. 1988).Show More She maintained that the airline discriminated against her as a Black woman because of its grooming policy that prohibited employees in certain positions from wearing an all-braided hairstyle. The United States District Court for the Southern District of New York held that a neutral employer policy that prohibited an all-braided hairstyle did not constitute racial discrimination. The court suggested that a racially neutral employer’s policy would violate Title VII in two circumstances: (1) the policy has a disparate impact on Black women and was not related to the job or consistent with a business necessity or (2) the policy is applied in a discriminatory fashion.65 65.Rogers v. Am. Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1988); Imani Gandy, Black Hair Discrimination is Real––But is it Against the Law?, Rewire News Group (Apr. 17, 2017), https://rewirenewsgroup.com/ablc/2017/04/17/black-hair-discrimination-real-but-is-it-against-law/ [https://perma.cc/E3JT-8KCM].Show More The court distinguished American Airlines’ policy from policies prohibiting afros because an all-braided is not an immutable characteristic but rather “the product…of artifice” and is an “easily changed characteristic.”66 66.Rogers, 527 F. Supp. at 232.Show More Lastly, the court rejected Rogers’ cultural argument stating that even if the all-braided hairstyle is associated with a particular race or nationality, it is not an impermissible basis for distinctions in applying an employer’s policy.

In EEOC v. Catastrophe Management Solutions, the Eleventh Circuit affirmed the dismissal of a lawsuit filed by the EEOC on behalf of Chasity Jones, a Black woman who wore dreadlocks, under Title VII.67 67.852 F.3d 1018 (11th Cir. 2016).Show More While Catastrophe Management Solution (CMS)’s grooming policy did not explicitly prohibit dreadlocks, CMS’s human resources manager, Jeannie Wilson, rescinded Jones’s offer after refusing to cut her dreadlocks according to the race-neutral policy. Wilson told Jones that dreadlocks “tend to get messy.”68 68.See Catastrophe Mgmt. Solutions, 852 F.3d at 1021.Show More Because the EEOC indicated an intention to proceed under a disparate treatment theory but made disparate impact arguments, the court refused to address EEOC’s arguments that CMS’s policy disproportionately affected Black employees.69 69.See id. at 1024 (explaining that a disparate treatment claim requires a plaintiff to show that an employer intentionally discriminated against the plaintiff based on their race, while a disparate impact claim only requires proof that an employment practice has an actual adverse impact on a protected group); Dawn D. Bennett-Alexander & Linda F. Harrison, My Hair Is Not Like Yours: Workplace Hair Grooming Policies for African American Women as Racial Stereotyping in Violation of Title VII, 22 Cardozo J.L. & Gender 437, 441 (2016) (explaining that a plaintiff can bring either a disparate treatment or disparate impact claim); see Ricci v. DeStefano, 557 U.S. 557, 581 (2009).Show More The court held that even though dreadlocks were a common way of wearing hair for Black people and suitable for Black hair texture, they were not an immutable characteristic of Black people; hence, there was no violation of Title VII.

These cases suggest that wearing the afro is the only natural hairstyle that a Black woman could legally wear in the workplace.70 70.See Powell, supra note , at 933–34.Show More Every other natural hairstyle, including braids, dreadlocks, and cornrows, can be prohibited.71 71.Id.Show More As mentioned before, afros have been perceived negatively, which means that Black women’s only option is to alter their hair texture to make it straight,72 72.Id.Show More imposing significant burdens on Black women.73 73.See infraSection III.B. for a description of the burdens imposed on Black women.Show More

B. The Case for Dropping the Immutability Requirement

While the EEOC is responsible for enforcing Title VII, courts ultimately have the authority to interpret Title VII’s statutory language. The Supreme Court explained that Congress in Title VII did not grant the EEOC the power to promulgate substantive regulations.74 74.James J. Brudney, Chevron and Skidmore in the Workplace: Unhappy Together, 83 Fordham L. Rev. 497, 505 (2014).Show More Hence, the EEOC’s manual interpreting Title VII’s race as including cultural characteristics often linked to race or ethnicity has not been accorded the same deference as rules that Congress has proclaimed as carrying the force of law.75 75.See id.; Theodore W. Wern, Judicial Deference to EEOC Interpretations of the Civil Rights Act, the ADA, and the ADEA: Is the EEOC a Second Class Agency, 60 Ohio State Law J. 1533, 1549–50 (1999) (explaining that between 1964 and 1998, the Supreme Court deferred to the EEOC’s position approximately 54 percent compared to the baseline figure of 72 percent for other administrative agencies).Show More As a result, despite the EEOC’s more expansive definition of “race,” courts have historically interpreted race as falling into one of two categories of immutability.

First, the Supreme Court has defined immutable characteristics as those characteristics that their “possessors are powerless to escape or set aside.”76 76.Jessica A. Clarke, Against Immutability, 125 Yale L.J. 2, 14 (2015).Show More The Supreme Court considered such traits as suspect, and a legislative classification that is based on such a trait deserves heightened scrutiny by the courts.77 77.See id. at 13–14; see Sharona Hoffman, The Importance of Immutability in Employment Discrimination Law, 52 Wm. & Mary L. Rev. 1483, 1510 (2011).Show More In Frontiero v. Richardson, the Supreme Court defined sex, race, and national origin, as immutable characteristics that are determined “solely by the accident of birth.”78 78.411 U.S. 677, 686 (1973).Show More Similarly, the Eleventh Circuit in Catastrophe Management Solutions concluded that immutable traits are defined as physical characteristics that a group of people shares and transmit to the next generations over time.79 79.EEOC v. Catastrophe Mgmt. Solutions,852 F.3d 1018, 1027 (11th Cir. 2016).Show More The court considered such characteristics as a matter of birth and not culture.80 80.See id.Show More

Courts have also defined immutable characteristics as traits that are “so fundamental to the identities or consciences of its members that members either cannot or should not be required to change it.”81 81.Hoffman, supra note 77, at 1512.Show More The characteristic does not have to be completely fixed to be considered immutable.82 82.Id.Show More This notion of immutability has been associated with ideas about privacy and liberty,83 83.See Clarke, supra note 76, at 26.Show More finding inspiration in Justice Blackmun’s dissent in Bowers v. Hardwick.84 84.478 U.S. 186 (1986).Show More Justice Blackmun objected to anti-sodomy laws by drawing on cases protecting the right to privacy. He argued that rights associated with the family are protected, not because of their direct effects on the general public welfare but “because they form so central a part of an individual’s life” and are “significant” ways “that individuals define themselves.”85 85.Bowers, 478 U.S. at 204–05 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003).Show More Kerrigan v. Commissioner of Public Health cemented the idea of immutability as an argument about choice––“a person’s fundamental right to self-determination.”86 86.See Clarke, supra note 76, at 26–27 (citing Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 438 (Conn. 2008)) (explaining that “cases on the new immutability hold that, if a trait is not innocent in the sense of being an accident of birth, it must be innocent in the sense of being an ‘integral part of human freedom’”).Show More In Kerrigan, the Connecticut Supreme Court held that sexual orientation is immutable because the Constitution protects the right of “homosexual adults to engage in intimate, consensual conduct” as an “integral part of human freedom.”87 87.Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 438 (Conn. 2008) (citing Lawrence, 539 U.S. at 576–77.Show More

However, the Rogers court did not find that an all-braided hairstyle was so fundamental to Black women’s identities that Black women should not be required to change it.88 88.Rogers v. Am. Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1988) Rogers, an American Airlines employee whose duties consisted of extensive passenger contact, had worn an all-braided hairstyle at work against American Airlines’ grooming policy.Show More Instead, the court ruled that Rogers’s braided hairstyle could easily be changed, and as such, her employer’s policy did not constitute a Title VII violation. The court’s ruling would then run counter to the Constitution’s protection of the right to privacy because it would assume that the Constitution would not protect Rogers’s right to choose to wear an all-braided hairstyle. Although Rogers implicates Title VII and not the Equal Protection Clause, the notion of immutability from the equal protection context plays a role in employment discrimination law.89 89.See Clarke, supra note 76, at 31.Show More While the term “immutability” is not mentioned in any employment discrimination statute, including Title VII, courts have adopted its concept from the equal protection context to interpret the scope of statutory prohibitions on discrimination.90 90.Seeid. at 29.Show More Beyond the courtrooms, immutability-based ideas have influenced discourses about which characteristics should be prohibited bases for discrimination.91 91.Seeid.at 30–31.Show More

Courts should dismiss both definitions of immutability because they are fundamentally flawed. By defining immutable traits as accidents of birth in natural hair and hairstyles discrimination cases, the Eleventh Circuit ignored “basic elements of antidiscrimination analysis.”92 92.Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 377 (1991).Show More Such elements include the group’s history, patterns of oppression of the group that may help define its social and economic position, the group’s current position relative to that of other groups in society, and whether employment practices perpetuate the subordination of the individual or group.93 93.Seeid.Show More The Eleventh Circuit overlooked that African Americans are descendants of slaves who were forced to come to the United States under extremely abhorrent conditions. Before their arrival to the United States and after they were in the United States, their natural hair and natural hairstyles were an integral part of their identity.94 94.See infra Part I.Show More

The Eleventh Circuit disregarded the patterns of oppression against African Americans since their arrival in the United States and their current position relative to that of other groups. Black individuals have been discriminated against since the inception of the United States in every aspect of their lives, including in the healthcare system. For example, Black women were subjected to non-consensual medical experiments during slavery.95 95.Cynthia Prather et al., Racism, African American Women, and Their Sexual and Reproductive Health: A Review of Historical and Contemporary Evidence and Implications for Health Equity, 2 Health Equity 249, 251–52 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6167003/ [https://perma.cc/MDJ2-NFDQ] (describing experimental reproductive surgeries performed on enslaved Black women during slavery).Show More Jim Crow laws restricted their civil rights, and they were not protected against rape in some states.96 96.See id. at 252.Show More Today, Black individuals’ social and economic position is no better than other racial or ethnic groups. The poverty rate for Black people is 21.2 percent, although Black individuals only represent 13.4 percent of the U.S. population.97 97.See Kaiser Fam. Found., Poverty Rate by Race/Ethnicity (2019), https://www.kff.org/other/state-indicator/poverty-rate-by-raceethnicity/?currentTimeframe=‌0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D [https://perma.cc/N6VP-AF8E]; U.S. Census Bureau, Quick Facts, https://www.census.gov/quickfacts/fact/table/US/IPE120219 [https://perma.cc/C357-JR7Q].Show More On the other hand, the poverty rate for white individuals is 9 percent, and they represent 76.3 percent of the population.98 98.Seeid.Show More

The Eleventh Circuit did not consider that employment practices can perpetuate the subordination of Black individuals. Several employment policy decisions are made without a Black person’s input.99 99.See Taylor Mioko Dewberry, Title VII and African American Hair: A Clash of Cultures, 54 Wash. U. J.L. & Pol’y 329, 348 (2017).Show More In fact, “whites hold a disproportionate share of business ownership and decision-making power within corporate structures.”100 100.See Barbara Flagg, Fashioning a Title VII Remedy for Transparently White Subjective Decisionmaking, 104 Yale L.J. 2009, 2036 (1995).Show More Additionally, upper management consists primarily of non-Black individuals. Black people account for only 3.2 percent of the senior leadership roles at large companies, and there are only three African American CEOs at Fortune 500 companies today.101 101.See Khristopher J. Brooks, Why So Many Black Business Professionals Are Missing from the C-Suite, CBS (Dec. 10, 2019, 9:14AM), https://www.cbsnews.com/news/black-professionals-hold-only-3-percent-of-executive-jobs-1-percent-of-ceo-jobs-at-fortune-500-firms-new-report-says/ [https://perma.cc/T6HS-V98T].Show More Consequently, individuals to whom “racial identity is not a central life experience” have promulgated many supposedly race-neutral policies, including grooming policies.102 102.See Dewberry,supra note 99, at 348.Show More And studies have shown that white men and women displayed stronger levels of implicit bias against textured hair.103 103.See Kennedy, supra note 45, at 10; Johnson et al., supra note 51, at 13.Show More

Courts should also reject the “fundamental to the identities” definition of immutability. Rogers and Jones would have likely succeeded under this definition of immutability because their natural hair and natural hairstyles are so fundamental to Black women’s identities that they should not be required to change them. However, this definition has some flaws. First, this definition of immutability masked moralizing judgments about what is fundamental to a group, who gets to decide what is fundamental to say group, and what ought to be protected under Title VII.104 104.SeeClarke, supra note 76, at 33–35.Show More Another issue is the notion of “fundamental” itself. Why is it that a trait or characteristic must be viewed as fundamental before finding that it is protected under Title VII? Anti-discrimination law’s underlying predicate is that people should be judged on the basis of their qualifications and not based on extraneous identity traits, such as race, disability, and sex.105 105.SeeRobert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1, 11-16 (2000) (discussing the concept of blindness in antidiscrimination law).Show More Lastly, another problem with this definition of immutability is that it does not incorporate any limiting principle, which could make it difficult for judges and the public to accept arguments based on it.106 106.See Clarke, supra note 76, at 45.Show More Unlike the definition of immutability that is restricted to traits that are accidents of birth, this definition does not have any apparent limits on which traits are fundamental to a group.107 107.See id.Show More

III. Expanding Title VII’s Definition of Racial Discrimination
to Include Natural Hair and Natural Hair Discrimination
as a Form of Racial Discrimination

A. The Supreme Court’s Extension of the Definition of Title VII’s Sex Discrimination over the Years

Title VII prohibits an employer from treating an employee unfavorably because of their sex.108 108.See Sex-Based Discrimination, Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/sex-based-discrimination [https://perma.cc/7CZ7-8NS2] (last visited Jan. 21, 2021).Show More The EEOC has interpreted Title VII’s sex discrimination as discrimination based on sexual harassment, sexual orientation, and gender identity.109 109.Id.Show More The Supreme Court’s expanded view of sex discrimination aligned with the EEOC’s interpretation after the Court overruled Willingham v. Macon Telegraph Publishing Co.

In Willingham, the Fifth Circuit held that a plaintiff must show sex discrimination based on an immutable trait. The employer’s grooming policy required employees, men and women, who came into contact with the public to be neatly dressed and groomed following the standards traditionally accepted in the business community.110 110.See Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1087 (5th Cir. 1975).Show More The plaintiff was denied employment solely because he did not have a short haircut as required of male employees. The plaintiff argued that since “short hair is stereotypically male, requiring it of all male applicants” violated Title VII.111 111.Id.at 1089.Show More The Court stated that though the legislative history is inconclusive, it is unlikely that Congress intended for its prohibition of sexual discrimination to have “significant and sweeping implications.”112 112.Id. at 1090.Show More The Court then concluded that congressional action was required to read Title VII as barring discrimination based on sexual stereotypes.

However, in Price Waterhouse v. Hopkins, the Supreme Court ruled that Congress intended for its prohibition of sexual discrimination to have significant and sweeping implications and held that employment discrimination based on sex stereotypes is illegal sex discrimination under Title VII. The Court indicated that Title VII’s prohibition against discrimination based on a statutorily protected class is not limited to protecting only those characteristics of the class that may be viewed as immutable.113 113.See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).Show More The employee, Ann Hopkins, alleged that her employer, the accounting firm Price Waterhouse, denied her a promotion to the partnership because her gender presentation defied the firm’s view of how a woman should look and act. For instance, one partner told Hopkins that she needed to “walk more femininely, talk more femininely, dress more femininely, wear make-up, have her hair styled, and wear jewelry.”114 114.Id. at 235.Show More While the characteristics that Price Waterhouse identified as reasons for not promoting Hopkins were mutable, the Court ruled that discrimination based on these characteristics, which Hopkins could have changed but did not, constituted sex discrimination. The Court noted that Congress intended to “strike at the entire spectrum of disparate treatment of men and women resulting from sex stereotypes.”115 115.Id. at 251.Show More The court found that in asking Hopkins to make herself more feminine, her employer required her to conform to the stereotype associated with sex. The Court also opined that “Congress’ intent to forbid employers to take gender into account in making employment decisions appears on the face of the statute”116 116.Id. at 239.Show More and that any “employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”117 117.Id. at 250.Show More

In Oncale v. Sundowner Offshore Services, Inc., the Court expanded Title II’s definition of sex discrimination to include same-sex harassment. The Court ruled that a plaintiff could bring a male-on-male sexual harassment claim under Title VII, regardless of whether the drafters of Title VII had contemplated it at the time it was enacted.118 118.See Oncale v. Sundowner Offshore Services., Inc., 523 U.S. 75, 79–82 (1998).Show More Joseph Oncale was employed on an oil platform by Sundowner Offshore Services when he was forcibly subjected to sex-related, humiliating actions, physical assault, and rape threats by his supervisors. The Court stated that “statutory prohibitions often go beyond the principal evil [they were passed to fight] to cover reasonably comparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed.”119 119.Id. at 79.Show More Oncale established that Title VII prohibits discrimination because of sex in the terms or conditions of employment, with the critical issue being “whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.”120 120.Id. at 80.Show More

In Bostock v. Clayton County, the Court extended Title VII protections to sexual orientation and gender identity. In each of the cases presented before the Court, an employer allegedly fired a long-time employee for being homosexual or transgender. The Court noted that it is unlikely that when Congress passed Title VII, it intended it to cover gay and transgender people. Similarly, drafters of Title VII “[l]ikely…weren’t thinking about many of the Act’s consequences that have become apparent over the years,” including the protections against discrimination based on sexual harassment.121 121.Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).Show More The Court explained that “the limits of the drafters’ imagination supply no reason to ignore the law’s demands.”122 122.Id.Show More The Court focused its decision on the “ordinary public meaning” of the terms used in Title VII when it was enacted.123 123.Id. at 1738.Show More Accordingly, the Court found that “sex” as used in 1964 referred to “status as either male or female [as] determined by reproductive biology.”124 124.Id. at 1739.Show More The Court applied this definition of “sex” to Title VII’s “but for” causation standard. The Court then established the legal test as follows: whether a “particular outcome would not have happened ‘but for’ the purported cause.”125 125.Id. at 1739.Show More According to the Court, with a but-for test, a court must change one thing at a time and see if the outcome changes. If the outcome does change, there is a but-for cause.126 126.Id.Show More The Court explained that while there may be other causes of a particular outcome, in Title VII cases, an employer cannot avoid liability by citing another factor that contributed to its challenged employment action or decision. As long as the plaintiff’s sex was one but-for cause of the employer’s action or decision, Title VII is triggered.127 127.Id. at 1745.Show More

B. The Case for Extending the Definition of Title VII’s Prohibition of Racial Discrimination to Include Hair Discrimination

Even though Title VII does not define “race” or “sex,” Rogers, Catastrophe Management Solutions, and Willingham have interpreted it to mean that a plaintiff must show racial or sex discrimination based on an immutable trait or characteristic. The Willingham’s court explained its decision by stating that Congress did not intend for its prohibition of sexual discrimination to have significant and sweeping implications.

However, the Supreme Court in Price Waterhouse indicated that it was precisely Congress’ intent for its prohibition of sexual discrimination to have significant and sweeping implications, noting that Congress intended to strike at the entire spectrum of disparate treatment of men and women resulting from stereotypes. In Oncale, the Court explained that “statutory prohibitions often go beyond the principal evil [they were passed to fight] to cover reasonably comparable evils.”128 128.SeeOncale, 523 U.S. at 79.Show More In Bostock, the Supreme Court noted that the drafters of Title VII likely did not think about many of the Act’s consequences that have become apparent over the years.

The pressure on Black women to change their hair to adapt it to the mainstream standard imposes significant burdens on Black women, which Congress almost certainly did not contemplate at the time Title VII was enacted. Wearing smooth or straight hairstyles to fit in means that Black women have to change their hair texture.129 129.See Carter, supra note 6, at 36–37.Show More This can be achieved by using chemical treatments, commonly known as relaxers, that have the effect of altering the texture of Black hair to straight and can impose an important financial burden on Black women.130 130.See Powell, supra note , at 963.Show More To maintain straight hair, Black women spend a lot of money on relaxers and other hair straightener products. The sales of relaxers were valued at $131.8 million in 2014 in the United States.131 131.Nana Sidibe, This Hair Trend Is Shaking up the Beauty Biz, CNBC (July 1, 2015), https://www.cnbc.com/2015/07/01/african-americans-changing-hair-care-needs.html [https://perma.cc/BTQ5-5T4Z].Show More

Resorting to chemical treatments also has profound health implications for Black women. Black women can experience balding, burns on the scalp, and other scalp diseases due to chemical use and heat damage.132 132.See Powell, supra note , at 965; Fuqua Insights, Research Suggests Bias Against Natural Hair Limits Job Opportunities for Black Women (Aug. 12, 2020), https://www.fuqua.duke.edu/duke-fuqua-insights/ashleigh-rosette-research-suggests-bias-against-natural-hair-limits-job [https://perma.cc/C56J-RMEL].Show More In addition, a study has shown that Black women exercise less than any other group, and hair presents a critical barrier to exercise for many Black women in that the “time and economic constraints involved in preserving a hairstyle postexercise frames physical activity as prohibitive, or perhaps a luxury.”133 133.H. Shellae Versey, Centering Perspectives on Black Women, Hair Politics, and Physical Activity, 104 Am. J. Public Health 810, 813 (2014), https://www.ncbi.nlm.nih.gov/pmc/‌articles/PMC3987595/pdf/AJPH.2013.301675.pdf [https://perma.cc/MM8G-MNA7] (out of 123 Black women aged 21 to 60, 38% of women surveyed “cited avoiding exercise because of their hair”).Show More The hairstyles that Black women referenced in the study for accommodating exercise generally involve the least amount of maintenance––ponytails, braids, cornrows, and natural hairstyles134 134.Id.Show More––some of the same styles that are not considered to be professional. Another study determined that the use of hair relaxers or chemical hair straighteners increased Black’s women exposure to deleterious tumor-causing hormones.135 135.See Carter, supra note 6, at 39.Show More The study found that Black women were two to three times more likely than white women to develop uterine fibroids.136 136.Id.Show More Although uterine fibroids are benign, they can cause gynecologic morbidity and are the leading indication of hysterectomy in the United States.137 137.Id.; see Lauren A. Wise, et al., Hair Relaxer Use and Risk of Uterine Leiomyomata in African-American Women, 175 Am. J. of Epidemiology 432, 432 (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3282879/pdf/kwr351.pdf [https://perma.cc/Z87T-QKQ6].Show More Even if a Black woman does not experience explicit racism in the workplace, microaggressions, such as hair practices and comments about one’s appearance, is a form of discrimination that can lead to mental health problems, including anxiety, depression, and stress.138 138.See Berkemeyer, supra note 13, at 285.Show More The Good Hair study showed that “Black women suffer more anxiety around hair issues than their white peers” because of the pressure to conform to Eurocentric standards of beauty and professionalism.139 139.Id. at 287.Show More

Black women who choose to wear their natural hair and natural hairstyles and who, as a result, do not conform to their employers’ grooming standards, have faced discrimination in the form of lack of employment or promotion opportunities, and termination.140 140.See Carter, supra note 6, at 37.Show More Brittany Noble, a news anchor, faced criticism for her natural hair and was eventually terminated for wearing a natural hairstyle while on air in 2019.141 141.Id. at 39.Show More A recent experiment shows that bias against natural hair often starts during the hiring process. During the study, participants from various backgrounds assumed the role of recruiters and had to assess fictitious job applicants.142 142.SeeFuqua Insights, supra note 132.Show More The participants were more likely to rate Black women with straight hair and white women with either curly or straight hairstyles as more professional than Black women with natural hairstyles, who were deemed less professional and less competent.143 143.Id.Show More The participants were, thus, less likely to recommend Black women with natural hairstyles for interviews.144 144.Id.; see Chelsea Stein, MSU Research Exposes Discrimination Against Black Women with Natural Hair, Broad College of Business (Sept. 18, 2020), https://broad.msu.edu/news/msu-research-exposes-discrimination-against-black-women-with-natural-hair/ [https://perma.cc/D73C-HSYA].Show More In another instance of the same study, two groups of participants had to evaluate the same Black woman candidate: one group saw a photo of the candidate with natural hair, and the other group saw the candidate with straight hair.145 145.SeeFuqua Insights, supra note 132.Show More The latter group rated the candidate higher for professionalism and strongly recommended her for an interview.146 146.Id.Show More In that study, discrimination against natural hairstyles was for fictitious jobs in consultancy, an industry with more conservative dress norms.147 147.Seeid. (explaining that candidate’s hair texture did not influence perceptions of professionalism in the ad industry perhaps because advertising is viewed as a more creative industry than consulting).Show More

The burdens that Black women face when it comes to their hair and natural hairstyles could be described as “reasonably comparable evils” similar to the principal evil––race discrimination––that Title VII was passed to combat. Afros or natural hairstyles have historically and culturally been associated with the Black race.148 148.See Part I for the history and meaning of Black hair.Show More They are part of a Black person’s identity and a physical manifestation of their blackness. The pressures that Black women face in the workplace to assimilate to Eurocentric standards of professionalism come at a great cost to their finances, health, and professional growth. The fact that a Black woman can be fired, passed over for promotion, or simply not hired because of her hair is a form of racial discrimination. This is especially the case because none of the employer’s practice or grooming policies in Catastrophe Management Solutions or Rogers were related to job performance. Jones was hired before her offer was rescinded when she refused to cut her dreadlocks. Jones’ hiring showed that Jones had the required qualifications to get the job done. However, her natural hairstyle of choice became an impediment to her career advancement. Likewise, Rogers was a long-term employee of American Airlines. Nothing in the fact of the case suggests that her job performance was subpar. Similarly, her hairstyle of choice became an impediment to her career development.

Moreover, hair discrimination is similar to the sex stereotype discrimination that Hopkins faced when Price Waterhouse declined to promote her. Similar to the characteristics that Price Waterhouse identified as reasons for not promoting Hopkins, the characteristic that Wilson identified as a reason for rescinding Jones’ offer, is mutable. However, this did not deter the Court in Price Waterhouse in finding that requiring an employee to conform to a stereotype associated with sex constituted a violation of Title VII. Unlike Hopkins, who was required to conform to a stereotype, Jones was asked to “deviate” from a stereotype that associated dreadlocks––a hairstyle historically and culturally associated with Black individuals––with messiness and unprofessionalism. The result in both cases is the same. Just as Hopkins’ ability to get promoted depended on her willingness to conform to a stereotype requiring her to become more feminine, Jones’ ability to keep her offer was based on her willingness to deviate from a widely-held belief in professional environments that dreadlocks are unprofessional.

The terms or conditions that the Court in Oncale determined could trigger Title VII are like the terms or conditions placed on Jones and Rogers. Jones had to cut her dreadlocks before being hired for a position, and in Rogers, some employees could not hold certain positions if they wore their hair in an all-braided hairstyle. In Catastrophe Management Solutions and Rogers, Rogers and Jones, members of one race, were exposed to disadvantageous terms or conditions of employment to which members of other races were not exposed. In order for Rogers to have access to certain positions, she had to avoid wearing an all-braided hairstyle, and Jones had to cut her dreadlocks to be hired. Conditions like the ones presented to Jones and Rogers do not factor into the equation when hiring or promoting women of other races for the simple fact that it is rare, if not impossible, to see women professionals of other races with an all-braided hairstyle or dreadlocks. Similarly, a Black woman is 80 percent more likely to change her hair to meet social norms or expectations at work than a white woman is,149 149.See Cache McClay, Why Women Are Fighting Back Against Hair Oppression, BBC News (Dec. 13, 2019), https://www.bbc.com/news/world-us-canada-50786370 [https://perma‌.cc/9E62-6XS2].Show More showing that these terms or conditions disproportionately affect Black women.

Lastly, applying Bostock’s legal test to Catastrophe Management Solutions and Rogers would provide a different result than what the courts held in both cases. Had the employer’s grooming practice or policy in each case not prohibited Jones or Rogers from wearing a natural hairstyle, Jones would have been hired, and Rogers would have been able to keep her all-braided hairstyle. Bostock’s legal test is whether a particular outcome would not have happened but for the purported cause. In both instances, the plaintiff was intentionally penalized for wearing their hair in natural hairstyles. They would not have been penalized but for the fact that they wore their hair in natural hairstyles. And as mentioned before, it is rare, if not impossible, to find women professionals of other races wearing a hairstyle historically and culturally associated with Black individuals in the workplace. It is because the hairstyle is historically and culturally associated with Black individuals that it is viewed unfavorably. As described before, African cultures were seen as unconventional and uncivilized when they came to be viewed through Europeans’ lenses. There was no other factor that could explain the decision to rescind Jones’ offer as Wilson clearly stated that Jones had a choice between cutting her dreadlocks and working at CMS or refusing to do so and not working at CMS. Likewise, Rogers had to change her all-braided hairstyle. And even assuming that there was another factor that contributed to Jones and Rogers being penalized because of their choice of hairstyle, their employers would not be able to avoid liability under Title VII by citing that the other factor contributed to their employer’s decision under Bostock.

C. Addressing Dissenting Viewpoints on the Expansion of Title VII’s Prohibition of Racial Discrimination to Include Hair Discrimination

People who do not believe that natural hair and hairstyle discrimination is a form of racial discrimination may disagree with expanding the definition of racial discrimination following the sex discrimination example. Many individuals, both Black women and non-Black individuals, may argue that there is no bias against natural hair and natural hairstyles in the workplace. However, the data shows that many Black women have been discriminated against because of their hair and natural hairstyles. And Jones’s and Rogers’s stories are great illustrations of the consequences of the bias and discrimination that Black women experience in the workplace.

Opponents of the expansion may also argue that employers have the right, as private companies, to adopt rules regarding professional code of conduct and grooming policies. However, if a practice or grooming policy disproportionately affects Black women because of their racial identity, the law should protect them. In Rogers, American Airlines asserted that its “policy was adopted in order to help American project a conservative and business-like image.”150 150.Rogers,527 F. Supp. at 233.Show More This implies that Black women’s hair and natural hairstyles are not conservative and business-like and refers back to the perception that natural hair and natural hairstyles are not professional. Giving employers the broad authority to adopt the policies that would govern their businesses “leaves room for decisions informed by implicit bias” against Black women.151 151.SeeDewberry, supranote 99, at 352.Show More

Opponents of expanding the definition of Title VII racial discrimination to include natural hair and natural hairstyle discrimination may argue that employers’ grooming policies did not explicitly target Black women and their natural hairstyles. The well-documented history of prejudice and discrimination against Black individuals in the United States has shown otherwise. Discriminatory hair policies may seem neutral, but they may appear to be so simply because the expectation is that all employees have to assimilate to the dominant hair culture and hairstyles of white individuals.152 152.See Michelle L. Turner, The Braided Uproar: A Defense of My Sister’s Hair and a Contemporary Indictment of Rogers v. American Airlines, 7 Cardozo Women’s L.J. 115, 129–30 (2001).Show More Additionally, racial discrimination that was characterized by overt discriminatory acts has now been transformed into more subtle and indirect discriminatory practices.153 153.See Dewberry,supranote 99, at 345.Show More By extending the definition of racial discrimination to include natural hair and natural hairstyle discrimination, employers would be more mindful of the type of grooming policies they promulgate or practices that they perpetuate. Similarly, it would force them to confront their implicit bias because, otherwise, they open the door to potential liability.

Further, critics may oppose extending Title VII protections to natural hairstyles because of the possibility that other characteristics would be deemed Title VII violations. It is unlikely that expanding Title VII in such a way would lead to a chain reaction whereby other things would be viewed as violations of Title VII. In the sex discrimination cases, the Supreme Court has incorporated a limiting principle based on “reasonably comparable evils.” The Court did not create newly protected categories under Title VII. The Court has determined that sexual stereotypes, sexual harassment, and sexual orientation, and gender identity discrimination are reasonably comparable evils to the principal evil––sex discrimination. Similarly, natural hair and hairstyle discrimination is a reasonably comparable evil to the principal evil––racial discrimination. In both instances, the reasonably comparable evils are derived from the principal evil.

Lastly, the judiciary may refuse to expand the definition of Title VII’s racial discrimination to include natural hair and natural hairstyle discrimination, positing that legislatures, as elected bodies, have the authority to legislate. Recent legislative developments have aimed at protecting Black individuals from discrimination based on natural hair and natural hairstyles. However, they are recent, local, and not broadly implemented. The CROWN (Creating a Respectful and Open Workforce for Natural Hair) Act became effective in California in January 2020 and bans employment discrimination against employees who choose to wear natural hairstyles.154 154.See Senate Bill No. 188, 2019-2020 Reg. Sess. ch. 58 (Cal. 2019) https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB188 [https://perma.cc/R2P5-PW3E]; Natasha L. Domek and Lauren J. Blaes, A Heads up on the CROWN Act: Employees’ Natural Hairstyles now Protected, 9 Nat’l L. Rev. (2019) (explaining that Senate Bill 188 is also known as the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act, which revises the California Education Code and the Fair Employment and Housing Act’s definition of race).Show More Its definition of “race” includes traits historically associated with race, such as hair texture and protective hairstyles.155 155.Senate Bill No. 188, 2019-2020 Reg. Sess., ch. 58, § 2(a)(1) (Cal. 2019).Show More It acknowledges that U.S. history is “riddled with laws and societal norms that equated ‘blackness,’ and [the associated] physical traits,” such as “dark skin, kinky and curly hair to a badge of inferiority, sometimes subject to separate and unequal treatment.”156 156.Senate Bill No. 188, 2019-2020 Reg. Sess., ch. 58, § 1(a) (Cal. 2019).Show More Similarly, the CROWN Act became law in Montgomery County, Maryland, in February 2020.157 157.See Press Release, Montgomery County Council, CROWN Act Becomes Law in Montgomery County, (Feb. 6, 2020), https://www2.montgomerycountymd.gov/‌mcgportalapps/Press_Detail.aspx?Item_ID=23850&Dept=1 [https://perma.cc/7XEF-NPYM].Show More The Virginia legislature passed a bill that became effective in July 2020, amending its Human Rights Act to extend the definition of “because of race” or “on the basis of race” to include traits historically associated with race, including hair texture, type, and style.158 158.SeeKatherine P. Sandberg et al., Natural Hair Movement Spurs Nationwide Legislative Response to Prevent Hairstyle Discrimination, 48 ABA J. Lab. & Emp. Law 1, 6 (2020). For more examples of similar initiatives, see also NYC Commission on Human Rights, Legal Enforcement Guidance on Race Discrimination on the Basis of Hair (2019), https://www1.nyc.gov/assets/cchr/downloads/pdf/Hair-Guidance.pdf [https://perma.cc/A5GY-KPMT] (The New York City’s Commission on Human rights’ guidelines to protect “rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities,” including “the right to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state”).Show More In many states, where natural hair and natural hairstyle discrimination is not prohibited, Black women have no recourse against discrimination. And the U.S. Congress has yet to pass a law banning race-based hair discrimination.159 159.CROWN ACT of 2019, S. 3167, 116th Congress (2020). The U.S. House of Representatives passed the CROWN Act in September 2020. The Act moved to the U.S. Senate, which did not vote on it before the end of the 116th Congress in January 2021.Show More

Conclusion

Black women who deviate from the norm of straight hair face significant barriers in the workplace. Implicit bias surrounding Black women’s hair, which has been perceived as unprofessional and associated with less competence, adds additional burdens on Black women leading to pressure to conform to the norm. This pressure has several detrimental financial, health, and professional implications for Black women. A Black woman’s decision to straighten her hair should be based on “a personal preference, not a burden to conform to a set of criteria,”160 160.Fuqua Insights, supra note 132 (citing Ashleigh Shelby Rosette, a management professor and a senior associate dean at the Fuqua School of Business at Duke University).Show More written or otherwise. While braids, twists, and dreadlocks are the main hairstyle choices that would not fit these criteria, they would release Black women from the burdens of hair straightening. However, these natural hairstyles are not protected under the law because they are not viewed as immutable characteristics of the Black race. The only legally permissible hairstyle that Black women can wear in the workplace, and that is protected under Title VII is the afro, which has also been perceived negatively.

Over the decades, the Supreme Court has demonstrated by its decisions in sex discrimination cases that Title VII could be expanded to account for injustices that were not contemplated when Title VII was originally passed. Likewise, it is unlikely that Congress considered the burdens that Black women would face in the workplace because of the negative perceptions around Black hair and natural hairstyles. Consequently, Title VII’s drafters did not consider prohibitions on natural hair and natural hairstyles to constitute racial discrimination when it passed Title VII. By its extension of the definition of sex discrimination under Title VII, the Supreme Court has shown its willingness to go beyond the original understating of Title VII sex discrimination “to accommodate new understandings of the nature and expression of sex discrimination.”161 161.Charlie Birkel, “Comparable Evils”: How to Read Sexual Orientation into Title VII’s Evolving Protections, Harv. C.R.-C.L. L. Rev. (2017), https://harvardcrcl.org/comparable-evils-how-to-read-sexual-orientation-into-title-viis-evolving-protections/ [https://perma.cc/E3AX-DGJE].Show More Expanding the definition of Title VII’s racial discrimination to include hair discrimination would ensure that Black women no longer face pressures to continually choose between retaining their own identity at the expense of their career goals or abandoning their cultural heritage to conform with the dominant culture.162 162.See Reidy & Kanigiri, supra note 1.Show More

  1. * Law clerk at Baker McKenzie. I would like to thank the Virginia Law Review Online staff, especially Editor in Chief Tiffany Mickel and Online Editor Allison Burns for their hard work on the piece; Catherine Guerrier for her feedback and support; Courtney Davis for her thoughtful comments and encouragement; and my family for their continued love and support. ↑
  2. Ashleigh Shelby Rosette & Tracy L. Dumas, The Hair Dilemma: Conform to Mainstream Expectations or Emphasize Racial Identity, 14 Duke J. Gender L. & Pol’y 407, 412 (2007) (explaining that socio-psychology research has provided strong evidence showing that being viewed as different can be a liability in the workplace); Steven Reidy & Meher Kanigiri, How Are Ethnic Hairstyles Really Viewed in the Workplace?, Cornell Univ. ILR School (2016) (explaining that the more someone is perceived as “fitting in” with the firm culture “the better their workplace outcomes, and the greater the degree of deviation from the group the worse the outcome,” and thus workers whose identity differs from the dominant firm culture face two choices: assimilating to the dominant firm culture or being excluded). ↑
  3. Ra’Mon Jones, What the Hair: Employment Discrimination Against Black People Based on Hairstyles, 36 Harv. BlackLetter L.J. 27, 29 (2020) (defining natural hair “as hair that has not been altered by chemical straighteners, including relaxers and texturizers”). ↑
  4. See Rosette & Dumas, supra note 1, at 413. ↑
  5. Id. at 412. ↑
  6. Id.; see Jena McGregor, More States Are Trying to Protect Black Employees Who Want to Wear Natural Hairstyles at Work, Wash. Post (Sept. 19, 2019), https://www.washingtonpost.com/business/2019/09/19/more-states-are-trying-protect-black-employees-who-want-wear-natural-hairstyles-work/ [https://perma.cc/S26M-ABL6] (noting that Minda Harts, founder of a career development company for women of color, stated that she wears her hair straight 99 percent of the time because she has seen how others look upon clients wearing braids and natural hairstyles in corporate America). ↑
  7. Kim Carter, Workplace Discrimination and Eurocentric Beauty Standards, 36 GPSOLO 36, 36 (2019); Venessa Simpson, What’s Going on Hair?: Untangling Societal Misconceptions that Stop Braids, Twists, and Dreads from Receiving Deserved Title VII Protection, 47 Sw. L. Rev. 265, 265 (2017). ↑
  8. See Carter, supra note 6, at 36. ↑
  9. “Protective hairstyles” are also called natural hairstyles. They can be used interchangeably. ↑
  10. Cornrows are also called plaits. Threading one’s hair means wrapping one’s hair in thread. ↑
  11. The historian John Thornton wrote that when Europeans first came into contact with western Africa in the late fifteenth century, they remarked on the many hairstyles African wore. There were “various combinations of braids, plaits . . . shaved areas, and areas cut to different lengths . . . creating a stunning effect.” See Shane White & Graham White, Slave Hair and African American Culture in the Eighteenth and Nineteenth Centuries, 61 J. Southern Hist. 45, 51 (1995). ↑
  12. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 254. ↑
  13. See infra Section III.C. ↑
  14. See Sharon Adetutu Omotoso, Gender and Hair Politics: An African Philosophical Analysis, 12 J. Pan African Stud. 5, 5 (2018); Ciera Berkemeyer, New Growth: Afro-Textured Hair, Mental Health, and the Professional Workplace, 44 J. Legal Prof. 279, 284 (2020); see also Rumeana Jahangir, How Does Black Hair Reflect Black History?, BBC News (May 31, 2015), https://www.bbc.com/news/uk-england-merseyside-31438273 [https://perma.cc/‌XZF2-UUN2]; White & White, supra note 10, at 49; Reidy & Kanigiri, supra note 1. ↑
  15. See White & White, supra note 10, at 50. ↑
  16. See Omotoso, supra note 13, at 9. ↑
  17. Id. ↑
  18. Id. at 10. ↑
  19. See id. at 11; Berkemeyer, supra note 13, at 284. ↑
  20. See Jahangir, supra note 13; see also Omotoso, supra note 13, at 12. ↑
  21. See Omotoso, supra note 13, at 11. ↑
  22. Id. ↑
  23. Id. ↑
  24. Id. ↑
  25. Id. ↑
  26. Id. at 12. ↑
  27. See Berkemeyer, supra note 13, at 284. ↑
  28. Tabora A. Johnson & Teiahsha Bankhead, Hair It Is: Examining the Experiences of Black Women with Natural Hair, 2 Open J. Soc. Sci. 86, 87 (2014). ↑
  29. See Berkemeyer, supra note 13, at 284; Johnson & Bankhead, supra note 27, at 87. ↑
  30. See Berkemeyer, supra note 13, at 284. ↑
  31. See White & White, supra note 10, at 51 (explaining that “[d]escriptions of hair arrangements contained in eighteenth-century runaway advertisements indicate that, within the obvious limits imposed by an oppressive system, African American slaves were engaged in the same cultural activity”). ↑
  32. See White & White, supra note 10, at 58 (explaining that Black people “were not supposed to be proud of their hair, as they or their ancestors had been in Africa; any suggestion that they were would have sharply challenged complacent white cultural assumptions”). ↑
  33. Crystal Powell, Bias, Employment Discrimination, and Black Women’s Hair: Another Way Forward, 2018 BYU L. Rev. 933, 940–41 (2019) (explaining that “negro status” was the status of a “sub-human” with natural hair linked to non-human qualities, such as wool or bush). ↑
  34. See Johnson & Bankhead, supra note 27, at 88. ↑
  35. See Jahangir, supra note 13. ↑
  36. See Omotoso, supra note 13, at 13–14 (noting that as of 2005, African-Americans spent $81.6 million per annum on chemical products (especially relaxers)); Chante Griffin, How Natural Black Hair at Work Became a Civil Rights Issue, JSTOR Daily (July 3, 2019), https://daily.jstor.org/how-natural-black-hair-at-work-became-a-civil-rights-issue/ [https://perma.cc/H9P4-6J79] (explaining that Madam C.J. Walker, a Black woman, invented the hot comb used to straighten Black hair, providing Black women an “avenue for increased societal acceptance in an era when minstrel songs mocked” African Americans’ hair texture). ↑
  37. Jahangir, supra note 13; see also Reidy & Kanigiri, supra note 1. ↑
  38. See Omotoso, supra note 13, at 12. ↑
  39. See id. at 6. ↑
  40. See id. at 13. ↑
  41. See Berkemeyer, supra note 13, at 281 (explaining that “when follicles curve sebum is not able to travel the length of the hair. Because moisture is harder to retain in [curly and kinky] textures, the natural hair community often turns to protective styling to maintain healthy, moisturized hair” because it reduces continuous manipulation of hair, promotes growth retention, and protects the ends of the hair). ↑
  42. See id. at 281. ↑
  43. See Simpson, supra note 6, at 266. ↑
  44. Carter, supra note 6, at 36. ↑
  45. Reidy & Kanigiri, supra note 1; see also Rosette & Dumas, supra note 1, at 407. ↑
  46. See Griffin, supra note 35 (noting that the Act created the EEOC, which operates “as the lead enforcement agency in the area of workplace discrimination” and explaining that when the EEOC was introduced, the federal government’s main concern was to ensure that individuals be granted equal access to public workplaces—it did not envisage that Black hair would require equal access as well); Kalen Kennedy, My Natural Hair Is Unprofessional: The Impact of Black Hairstyles on Perceived Employment-Related Characteristics 8 (2020) (Master’s Thesis, Marquette University), https://epublications.marquette.edu/cgi/viewcontent‌.cgi?article=1580&context=theses_open [https://perma.cc/D9EN-H43Q](explaining that Black women are aware of the general public’s perceptions of their hair and go to great lengths to avoid being perceived negatively because of their hair and hairstyle. This includes “spending hours preparing their hair for work . . . spending large amounts of money on hair supplies, avoiding physical activity, or avoiding going outdoors when it is raining”). ↑
  47. See Berkemeyer, supra note 13, at 282 (stating that even where grooming policies do not specifically target Black women’s hair, implicit bias may play a significant role in crafting grooming policies that seem to be racially neutral but that adversely affect Black professionals and Black employees); Kennedy, supra note 45, at 8. ↑
  48. All the studies that I found related to implicit bias against Black hair. It would be rare for someone to make overtly racist comments about Black women’s hair in the workplace since that could open the door to liability in some states. Depending on whether the style is the Afro, it could also be a Title VII violation. ↑
  49. See Laura McLaughlin, Self-Sabotaging: How Implicit Bias May Be Contributing to your “Can’t Find Any Women or Diverse Associates” Hiring Problem, ABA (Mar. 31, 2016),https://www.americanbar.org/groups/litigation/committees/commercial-business/practice/2016/self-sabotaging-how-implicit-bias-may-be-contributing-cant-find-any-women-diverse-associates-hiring-problem/ [https://perma.cc/77XL-23YF]; Melissa Little, Implicit Bias: Be an Advocate for Change, ABA, https://www.americanbar.org/groups/‌young_lawyers/publications/tyl/topics/professional-development/implicit-bias-be-an-advocate-for-change/ [https://perma.cc/WW7H-93PL] (last visited Nov. 18, 2020). ↑
  50. See Kennedy, supra note . ↑
  51. Id. at 17. ↑
  52. See Alexis McGill Johnson et al., Perception Inst., The “Good Hair” Study: Explicit and Implicit Attitudes Toward Black Women’s Hair (2017), https://perception.org/wp-content/uploads/2017/01/TheGood-HairStudyFindingsReport.pdf [https://perma.cc/592M-J8KE]. ↑
  53. Id. at 4; Kennedy, supra note , at 9. ↑
  54. Id. ↑
  55. Johnson et al., supra note 51, at 11. ↑
  56. See Kennedy, supra note 45, at 10; Johnson et al., supra note 51, at 6; see Rosette & Dumas, supra note 1, at 415–16 (Black women “are highly aware that their hairstyles may highlight the fact that they are different and thereby invite negative stereotypes about Black women . . . [and have had to] ‘shift so that their hair doesn’t blind their employers to their talent’” (citation omitted)). ↑
  57. Johnson et al., supra note 51, at 11. ↑
  58. See Kennedy, supra note , at 10. ↑
  59. The CROWN Act, The Official Campaign of the CROWN Act Led by the CROWN Coalition, https://www.thecrownact.com [https://perma.cc/UE6K-XA2X] (last visited May 8, 2021). ↑
  60. See Kennedy, supra note 45, at 10 (hairstyles were categorized as either textured (afro, dreadlocks, twist-out, braids) or smooth (straight, long curls, short curls, and pixie cut)); see also Johnson et al., supra note 51, at 13. ↑
  61. See Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241, 254. ↑
  62. See Facts About Race/Color Discrimination, U.S. Equal Emp’t Opportunity Comm’n, https://www.eeoc.gov/laws/guidance/facts-about-racecolor-discrimination [https://perma.cc/MX5A-VGQQ] (last visited May 8, 2021). ↑
  63. See id.; see also Equal Emp’t Opportunity Comm’n, Notice Concerning the Supreme Court’s Decision in Vance v. Ball State University, 133 S. Ct. 2434 (2013), https://www.eeoc.gov/laws/guidance/section-15-race-and-color-discrimination [https://perma.cc/7CFV-BXSG] (last visited May 8, 2021). ↑
  64. See Renee Henson, Are My Cornrows Unprofessional?: Title VII’s Narrow Application of Grooming Policies, and its Effect on Black Women’s Natural Hair in the Workplace, 1 Bus., Entrepreneurship & Tax L. Rev. 521, 523 (2017). ↑
  65. 527 F. Supp. 229 (S.D.N.Y. 1988). ↑
  66. Rogers v. Am. Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1988); Imani Gandy, Black Hair Discrimination is Real––But is it Against the Law?, Rewire News Group (Apr. 17, 2017), https://rewirenewsgroup.com/ablc/2017/04/17/black-hair-discrimination-real-but-is-it-against-law/ [https://perma.cc/E3JT-8KCM]. ↑
  67. Rogers, 527 F. Supp. at 232. ↑
  68. 852 F.3d 1018 (11th Cir. 2016). ↑
  69. See Catastrophe Mgmt. Solutions, 852 F.3d at 1021. ↑
  70. See id. at 1024 (explaining that a disparate treatment claim requires a plaintiff to show that an employer intentionally discriminated against the plaintiff based on their race, while a disparate impact claim only requires proof that an employment practice has an actual adverse impact on a protected group); Dawn D. Bennett-Alexander & Linda F. Harrison, My Hair Is Not Like Yours: Workplace Hair Grooming Policies for African American Women as Racial Stereotyping in Violation of Title VII, 22 Cardozo J.L. & Gender 437, 441 (2016) (explaining that a plaintiff can bring either a disparate treatment or disparate impact claim); see Ricci v. DeStefano, 557 U.S. 557, 581 (2009). ↑
  71. See Powell, supra note , at 933–34. ↑
  72. Id. ↑
  73. Id. ↑
  74. See infra Section III.B. for a description of the burdens imposed on Black women. ↑
  75. James J. Brudney, Chevron and Skidmore in the Workplace: Unhappy Together, 83 Fordham L. Rev. 497, 505 (2014). ↑
  76. See id.; Theodore W. Wern, Judicial Deference to EEOC Interpretations of the Civil Rights Act, the ADA, and the ADEA: Is the EEOC a Second Class Agency, 60 Ohio State Law J. 1533, 1549–50 (1999) (explaining that between 1964 and 1998, the Supreme Court deferred to the EEOC’s position approximately 54 percent compared to the baseline figure of 72 percent for other administrative agencies). ↑
  77. Jessica A. Clarke, Against Immutability, 125 Yale L.J. 2, 14 (2015). ↑
  78. See id. at 13–14; see Sharona Hoffman, The Importance of Immutability in Employment Discrimination Law, 52 Wm. & Mary L. Rev. 1483, 1510 (2011). ↑
  79. 411 U.S. 677, 686 (1973). ↑
  80. EEOC v. Catastrophe Mgmt. Solutions, 852 F.3d 1018, 1027 (11th Cir. 2016). ↑
  81. See id. ↑
  82. Hoffman, supra note 77, at 1512. ↑
  83. Id. ↑
  84. See Clarke, supra note 76, at 26. ↑
  85. 478 U.S. 186 (1986). ↑
  86. Bowers, 478 U.S. at 204–05 (1986), overruled by Lawrence v. Texas, 539 U.S. 558 (2003). ↑
  87. See Clarke, supra note 76, at 26–27 (citing Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 438 (Conn. 2008)) (explaining that “cases on the new immutability hold that, if a trait is not innocent in the sense of being an accident of birth, it must be innocent in the sense of being an ‘integral part of human freedom’”). ↑
  88. Kerrigan v. Commissioner of Public Health, 957 A.2d 407, 438 (Conn. 2008) (citing Lawrence, 539 U.S. at 576–77. ↑
  89. Rogers v. Am. Airlines, Inc., 527 F. Supp. 229 (S.D.N.Y. 1988) Rogers, an American Airlines employee whose duties consisted of extensive passenger contact, had worn an all-braided hairstyle at work against American Airlines’ grooming policy. ↑
  90. See Clarke, supra note 76, at 31. ↑
  91. See id. at 29. ↑
  92. See id. at 30–31. ↑
  93. Paulette M. Caldwell, A Hair Piece: Perspectives on the Intersection of Race and Gender, 1991 Duke L.J. 365, 377 (1991). ↑
  94. See id. ↑
  95. See infra Part I. ↑
  96. Cynthia Prather et al., Racism, African American Women, and Their Sexual and Reproductive Health: A Review of Historical and Contemporary Evidence and Implications for Health Equity, 2 Health Equity 249, 251–52 (2018), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC6167003/ [https://perma.cc/MDJ2-NFDQ] (describing experimental reproductive surgeries performed on enslaved Black women during slavery). ↑
  97. See id. at 252. ↑
  98. See Kaiser Fam. Found., Poverty Rate by Race/Ethnicity (2019), https://www.kff.org/other/state-indicator/poverty-rate-by-raceethnicity/?currentTimeframe=‌0&sortModel=%7B%22colId%22:%22Location%22,%22sort%22:%22asc%22%7D [https://perma.cc/N6VP-AF8E]; U.S. Census Bureau, Quick Facts, https://www.census.gov/quickfacts/fact/table/US/IPE120219 [https://perma.cc/C357-JR7Q]. ↑
  99. See id. ↑
  100. See Taylor Mioko Dewberry, Title VII and African American Hair: A Clash of Cultures, 54 Wash. U. J.L. & Pol’y 329, 348 (2017). ↑
  101. See Barbara Flagg, Fashioning a Title VII Remedy for Transparently White Subjective Decisionmaking, 104 Yale L.J. 2009, 2036 (1995). ↑
  102. See Khristopher J. Brooks, Why So Many Black Business Professionals Are Missing from the C-Suite, CBS (Dec. 10, 2019, 9:14AM), https://www.cbsnews.com/news/black-professionals-hold-only-3-percent-of-executive-jobs-1-percent-of-ceo-jobs-at-fortune-500-firms-new-report-says/ [https://perma.cc/T6HS-V98T]. ↑
  103. See Dewberry, supra note 99, at 348. ↑
  104. See Kennedy, supra note 45, at 10; Johnson et al., supra note 51, at 13. ↑
  105. See Clarke, supra note 76, at 33–35. ↑
  106. See Robert Post, Prejudicial Appearances: The Logic of American Antidiscrimination Law, 88 Calif. L. Rev. 1, 11-16 (2000) (discussing the concept of blindness in antidiscrimination law). ↑
  107. See Clarke, supra note 76, at 45. ↑
  108. See id. ↑
  109. See Sex-Based Discrimination, Equal Emp. Opportunity Comm’n, https://www.eeoc.gov/sex-based-discrimination [https://perma.cc/7CZ7-8NS2] (last visited Jan. 21, 2021). ↑
  110. Id. ↑
  111. See Willingham v. Macon Tel. Pub. Co., 507 F.2d 1084, 1087 (5th Cir. 1975). ↑
  112. Id. at 1089. ↑
  113. Id. at 1090. ↑
  114. See Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). ↑
  115. Id. at 235. ↑
  116. Id. at 251. ↑
  117. Id. at 239. ↑
  118. Id. at 250. ↑
  119. See Oncale v. Sundowner Offshore Services., Inc., 523 U.S. 75, 79–82 (1998). ↑
  120. Id. at 79. ↑
  121. Id. at 80. ↑
  122. Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020). ↑
  123. Id. ↑
  124. Id. at 1738. ↑
  125. Id. at 1739. ↑
  126. Id. at 1739. ↑
  127. Id. ↑
  128. Id. at 1745. ↑
  129. See Oncale, 523 U.S. at 79. ↑
  130. See Carter, supra note 6, at 36–37. ↑
  131. See Powell, supra note , at 963. ↑
  132. Nana Sidibe, This Hair Trend Is Shaking up the Beauty Biz, CNBC (July 1, 2015), https://www.cnbc.com/2015/07/01/african-americans-changing-hair-care-needs.html [https://perma.cc/BTQ5-5T4Z]. ↑
  133. See Powell, supra note , at 965; Fuqua Insights, Research Suggests Bias Against Natural Hair Limits Job Opportunities for Black Women (Aug. 12, 2020), https://www.fuqua.duke.edu/duke-fuqua-insights/ashleigh-rosette-research-suggests-bias-against-natural-hair-limits-job [https://perma.cc/C56J-RMEL]. ↑
  134. H. Shellae Versey, Centering Perspectives on Black Women, Hair Politics, and Physical Activity, 104 Am. J. Public Health 810, 813 (2014), https://www.ncbi.nlm.nih.gov/pmc/‌articles/PMC3987595/pdf/AJPH.2013.301675.pdf [https://perma.cc/MM8G-MNA7] (out of 123 Black women aged 21 to 60, 38% of women surveyed “cited avoiding exercise because of their hair”). ↑
  135. Id. ↑
  136. See Carter, supra note 6, at 39. ↑
  137. Id. ↑
  138. Id.; see Lauren A. Wise, et al., Hair Relaxer Use and Risk of Uterine Leiomyomata in African-American Women, 175 Am. J. of Epidemiology 432, 432 (2012), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3282879/pdf/kwr351.pdf [https://perma.cc/Z87T-QKQ6]. ↑
  139. See Berkemeyer, supra note 13, at 285. ↑
  140. Id. at 287. ↑
  141. See Carter, supra note 6, at 37. ↑
  142. Id. at 39. ↑
  143. See Fuqua Insights, supra note 132. ↑
  144. Id. ↑
  145. Id.; see Chelsea Stein, MSU Research Exposes Discrimination Against Black Women with Natural Hair, Broad College of Business (Sept. 18, 2020), https://broad.msu.edu/news/msu-research-exposes-discrimination-against-black-women-with-natural-hair/ [https://perma.cc/D73C-HSYA]. ↑
  146. See Fuqua Insights, supra note 132. ↑
  147. Id. ↑
  148. See id. (explaining that candidate’s hair texture did not influence perceptions of professionalism in the ad industry perhaps because advertising is viewed as a more creative industry than consulting). ↑
  149. See Part I for the history and meaning of Black hair. ↑
  150. See Cache McClay, Why Women Are Fighting Back Against Hair Oppression, BBC News (Dec. 13, 2019), https://www.bbc.com/news/world-us-canada-50786370 [https://perma‌.cc/9E62-6XS2]. ↑
  151. Rogers, 527 F. Supp. at 233. ↑
  152. See Dewberry, supra note 99, at 352. ↑
  153. See Michelle L. Turner, The Braided Uproar: A Defense of My Sister’s Hair and a Contemporary Indictment of Rogers v. American Airlines, 7 Cardozo Women’s L.J. 115, 129–30 (2001). ↑
  154. See Dewberry, supra note 99, at 345. ↑
  155. See Senate Bill No. 188, 2019-2020 Reg. Sess. ch. 58 (Cal. 2019) https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200SB188 [https://perma.cc/R2P5-PW3E]; Natasha L. Domek and Lauren J. Blaes, A Heads up on the CROWN Act: Employees’ Natural Hairstyles now Protected, 9 Nat’l L. Rev. (2019) (explaining that Senate Bill 188 is also known as the Creating a Respectful and Open Workplace for Natural Hair (CROWN) Act, which revises the California Education Code and the Fair Employment and Housing Act’s definition of race). ↑
  156. Senate Bill No. 188, 2019-2020 Reg. Sess., ch. 58, § 2(a)(1) (Cal. 2019). ↑
  157. Senate Bill No. 188, 2019-2020 Reg. Sess., ch. 58, § 1(a) (Cal. 2019). ↑
  158. See Press Release, Montgomery County Council, CROWN Act Becomes Law in Montgomery County, (Feb. 6, 2020), https://www2.montgomerycountymd.gov/‌mcgportalapps/Press_Detail.aspx?Item_ID=23850&Dept=1 [https://perma.cc/7XEF-NPYM]. ↑
  159. See Katherine P. Sandberg et al., Natural Hair Movement Spurs Nationwide Legislative Response to Prevent Hairstyle Discrimination, 48 ABA J. Lab. & Emp. Law 1, 6 (2020). For more examples of similar initiatives, see also NYC Commission on Human Rights, Legal Enforcement Guidance on Race Discrimination on the Basis of Hair (2019), https://www1.nyc.gov/assets/cchr/downloads/pdf/Hair-Guidance.pdf [https://perma.cc/A5GY-KPMT] (The New York City’s Commission on Human rights’ guidelines to protect “rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities,” including “the right to maintain natural hair, treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state”). ↑
  160. CROWN ACT of 2019, S. 3167, 116th Congress (2020). The U.S. House of Representatives passed the CROWN Act in September 2020. The Act moved to the U.S. Senate, which did not vote on it before the end of the 116th Congress in January 2021. ↑
  161. Fuqua Insights, supra note 132 (citing Ashleigh Shelby Rosette, a management professor and a senior associate dean at the Fuqua School of Business at Duke University). ↑
  162. Charlie Birkel, “Comparable Evils”: How to Read Sexual Orientation into Title VII’s Evolving Protections, Harv. C.R.-C.L. L. Rev. (2017), https://harvardcrcl.org/comparable-evils-how-to-read-sexual-orientation-into-title-viis-evolving-protections/ [https://perma.cc/E3AX-DGJE]. ↑

  163. See Reidy & Kanigiri, supra note 1. ↑

From Carrie Buck to Britney Spears: Strategies for Disrupting the Ongoing Reproductive Oppression of Disabled People

In June 2021, Britney Spears made headlines when she testified to a judge that she was being prevented from having children because her conservator would not allow her to stop using contraception. Britney Spears’s dreadful experiences are a glaring reminder that nearly 100 years after the infamous Buck v. Bell decision, reproduction is still weaponized to subjugate people with disabilities. Indeed, the reproductive oppression experienced by Britney Spears and other people with actual or perceived disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Confronting these persistent inequities will require us to radically transform our laws and policies. This Essay responds to the ongoing reproductive injustice experienced by disabled people by proposing a vision to assist activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the reproductive justice and disability justice movements. The guiding principles set forth herein are intended to advance a long-overdue conversation about reproductive justice for people with disabilities by providing a starting point for activists, scholars, legal professionals, and policymakers to use, critique, and improve upon. The need for action could not be more timely or clear.

Introduction

“I want to be able to get married and have a baby . . . . I wanted to take the (IUD) out so I could start trying to have another baby. But this so-called team won’t let me go to the doctor to take it out because they don’t want me to have children—any more children.” – Britney Spears1 1.Jem Aswad, Read Britney Spears’ Full Statement Against Conservatorship: ‘I Am Traumatized’, Variety (June 23, 2021, 3:59 PM), https://variety.com/2021/music/‌news/britney-spears-full-statement-conservatorship-1235003940/ [https://perma.cc/QJ6Y-9UBH] (transcript of Spears’s June 23, 2021, statement to Los Angeles Superior Court Judge, Brenda Penny).Show More

On June 23, 2021, Britney Spears delivered a twenty-four-minute statement to the Los Angeles Superior Court passionately pleading for an end to the thirteen-year conservatorship to which she has been subjected.2 2.Id. At the time of this writing, Britney Spears’s case is ongoing. On September 29, 2021, the court suspended Britney Spears’s father, James Spears, as his daughter’s conservator and temporarily replaced him with a new conservator. Joe Coscarelli, Julia Jacobs & Liz Day, Judge Frees Spears From Father’s Control (Oct. 2, 2021), https://www.nytimes.com/‌2021/09/29/arts/music/britney-spears-court-decision-conservatorship.html [https://perma.cc/9N3S-S8NA]. The court has scheduled a hearing for November 12, 2021, to determine whether the conservatorship should end.Id.Show More In her heartbreaking testimony, Britney Spears presented a lengthy list of abuses she has allegedly endured, including surveillance, confinement, forced medication, and arduous labor demands.3 3.Aswad, supra note 1.Show More One detail stood out as especially egregious: Britney Spears wants to get married and have more children but is being prevented from doing so because her conservators will not authorize the removal of her intrauterine device (“IUD”).4 4.Id.Show More The juxtaposed responses of people with and without disabilities are a telling commentary on the state of reproductive freedom for disabled people.5 5.Consistent with disability rights and disability justice movements, this Essay acknowledges the importance of language in shaping how we think about disability and how ableism can pervade language choices as well as reflect and perpetuate disability-based subordination. Lydia X. Z. Brown, Ableism/Language, Autistic Hoya(Feb. 27, 2021), https://www.autistichoya.com/p/ableist-words-and-terms-to-avoid.html [https://perma.cc/HS2F-LJ2C]. To that end, I use person-first and identity-first language interchangeably (e.g., “parents with disabilities” and “disabled parents”) in recognition of the disability community’s diverse language preferences. See generally Dana S. Dunn & Erin E. Andrews, Person-First and Identity-First Language: Developing Psychologists’ Cultural Competence Using Disability Language, 70 Am. Psych. 255 (2015) (exploring the evolving language preferences among people with disabilities).Show More Fans, celebrities, and public officials, on the one hand, expressed horror and astonishment that such reproductive oppression was lawfully occurring in the United States.6 6.See, e.g., @yooitsmo, Twitter (June 24, 2021, 11:58 AM), https://twitter.com/yooitsmo/‌status/1408092248265445387 [https://perma.cc/UX86-TLL3] (“I’m sorry but…Britney HAS to keep an [IUD] in under her conservatorship??? How is any of this legal/okay???”); Meghan McCain (@MeghanMcCain), Twitter (June 23, 2021, 9:14 PM), https://twitter.com/‌MeghanMcCain/‌status/1407869786156146689 [https://perma.cc/T7S7-3X6G] (“This goes beyond any normal courts, there should be human rights violations investigations. Britney Spears was held captive, out in the open and we gawked at her and didn’t listen. This is how we treat famous women. Thank God she didn’t kill herself. There is a rot in our culture”); Congresswoman Katie Porter (@katieporteroc), Twitter (June 24, 2021, 7:25 PM), https://twitter.com/katieporteroc/status/1408204566592561157 [https://perma.cc/‌AA53-C7WG] (“Every American—regardless of their gender identity or disability status—ought to be able to make decisions about their own bodies. #FreeBritney”).Show More People with disabilities, on the other hand, while enraged, were not surprised that Britney Spears’s conservator was exerting reproductive control over her, explaining that such efforts are emblematic of the United States’ ongoing practice of weaponizing their reproduction to subjugate them.7 7.See, e.g., Imani Barbarin (@Imani_Barbarin), Twitter (June 24, 2021, 10:54 AM), https://twitter.com/Imani_Barbarin/status/1408076140028305422 [https://perma.cc/3W8S-DPTB] (“I don’t like the gaslighting that goes on when disabled people tell y’all that what’s happening with #FreeBritney is not at all unique. You just have a hierarchy of disability and a point at which you think someone is “too disabled” to care about.”); Sarah Lerner (@SarahLerner), Twitter (June 23, 2021, 6:42 PM), https://twitter.com/SarahLerner/status/‌1407831499164962817 [https://perma.cc/A8BU-TS75] (“Britney Spears being held under a 13-year conservatorship and being forced to keep her IUD in despite the fact that she wants another child is where disability rights and reproductive rights intertwine.”); Dr. Sherri G. (@onlymeindc), Twitter (June 24, 2021, 9:27 PM), https://twitter.com/onlymeindc/‌status/1408235268545519617 [https://perma.cc/UV6J-LU5J] (“The Britney Spears situation is most definitely a disability rights issue. The medical and social models of disability are clashing right in front of your eyes. One model boils us down to impairment through oppressive paternalism forcing us in the sick role and the other doesn’t.”); Eric Michael Garcia (@EricMGarcia), Twitter (June 23, 2021, 5:55 PM), https://twitter.com/EricMGarcia/‌status/1407819545394434051 [https://perma.cc/8BKP-PMAL] (“As always, it’s important to remember that #FreeBritney is a disability rights issue. If the state can do this to one of the most influential pop stars in my lifetime, think about what it can do to others.”).Show More

Britney Spears’s experiences are neither unique nor uncommon. Rather, the belief that people with actual or perceived disabilities—including physical, intellectual, sensory, and psychiatric disabilities—should not have reproductive autonomy is woven into our nation’s fabric.8 8.See infra Part I (contextualizing the United States’ history of the reproductive oppression of people with disabilities and the ways in which it persists today).Show More Each day, disabled people experience reproductive oppression, including forced sterilization, coerced abortion, inadequate access to sexual and reproductive health services and information, and loss of custody of their children.9 9.Id.Show More The injustices are even more pronounced for multiply marginalized people with disabilities, including disabled people of color and LGBTQ+ people.10 10.Zoe Brennan-Krohn & Rebecca McCray, Britney Spears’ Reproductive Freedom Is a Disability Rights Issue, ACLU (June 25, 2021), https://www.aclu.org/news/civil-liberties/britney-spears-reproductive-freedom-is-a-disability-rights-issue/ [https://perma.cc/KZ9E-75WS] (“Spears’ experience is part of a long history of people with disabilities—most often people of color—being robbed of the right to control their reproductive destinies.”); Nat’l LGBTQ Task Force, Queering Reproductive Justice: A Toolkit 5–7 (Zsea Beaumonis, Candace Bond-Theriault, Stacey Long Simmons & Sabrina Rewald eds., 2017), https://www.thetaskforce.org/wp-content/uploads/2017/03/Queering-Reproductive-Justice-A-Toolkit-FINAL.pdf [https://perma.cc/5L88-TMXB].Show More The reproductive oppression experienced by disabled people is deeply entrenched in our laws, in our policies, and perhaps most importantly, in our collective conscience. To transform our society into one that respects and supports reproductive freedom for people with disabilities, therefore, the systems that propagate these injustices must be entirely dismantled.

This Essay responds to the persistent reproductive oppression experienced by people with disabilities by proposing a vision to help activists, legal professionals, scholars, and policymakers conceive of and articulate the basic contours of a paradigm shift that supports the coalescence of the reproductive justice and disability justice movements. Part I examines the social context, institutions, and history that perpetuate reproductive oppression among people with disabilities in the United States. It describes the origins of weaponizing reproduction to subjugate disabled people and contemporary examples of such injustice. Part II explores two complementary frameworks for analyzing and confronting the reproductive oppression of disabled people: reproductive justice and disability justice. Finally, guided by reproductive justice and disability justice, Part III proposes four guiding principles necessary for a jurisprudential and legislative agenda to achieve and deliver reproductive justice for people with disabilities.

I. Persistent Reproductive Injustice

The recent revelations of the reproductive control being exerted by Britney Spears’s conservator must be situated within the nation’s long and reprehensible history of weaponizing reproduction to oppress disabled people, as well as other marginalized communities. This Part limns the ways in which laws and policies have led to the reproductive oppression of people with disabilities—particularly girls and women with disabilities11 11.Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8Berkeley Women’s L.J. 122, 123–24 (1993) (“Only a few of the dozens of cases regarding involuntary sterilizations involve the sterilization of males. Therefore, sterilization practice is interwoven with the issue of control of female reproductive rights and, to some extent, of female sexual expression.”). But seeIn reGuardianship of Kennedy, 845 N.W.2d 707, 708–09 (Iowa 2014) (evaluating an appeal brought by a 21-year-old man with intellectual disabilities challenging the legality of a vasectomy his guardian had arranged for him without obtaining a court order); Renu Barton-Hanson, Sterilization of Men with Intellectual Disabilities: Whose Best Interest Is It Anyway?, 15 Med. L. Int’l 49, 57–58 (2015) (examining recent cases concerning sterilization of men with intellectual disabilities and noting the frequent justification as purportedly promoting sexual freedom).Show More—beginning with the eugenics movement. Without attempting to provide a complete description of the myriad ways in which reproduction has been weaponized to subjugate disabled people, this Part highlights examples of how these practices have lawfully endured over time, focusing primarily on contemporary practices.

A. Historical Reproductive Injustice

The United States has a horrible history of preventing disabled people from controlling their destinies, including enacting laws and policies restricting their reproductive decision-making. During the eugenics movement of the early 1900s, more than thirty states passed involuntary sterilization laws, postulating that people with disabilities and other marginalized communities were socially inadequate and should be prevented from procreating.12 12.See Eric M. Jaegers, Note, Modern Judicial Treatment of Procreative Rights of Developmentally Disabled Persons: Equal Rights to Procreation and Sterilization, 31 U. Louisville J. Fam. L. 947, 948, 953–54 (1993) (“The purpose of these laws was to protect and streamline society by preventing reproduction by those deemed socially or mentally inferior.”).Show More This line of reasoning underscored the infamous 1927 Buck v. Bell decision.13 13.274 U.S. 200 (1927).Show More Carrie Buck was purportedly a “feeble minded” woman institutionalized in Virginia.14 14.Id. at 205; see also Stephen Jay Gould, Carrie Buck’s Daughter, 2 Const. Comment.331, 336 (1985) (asserting that Buck was not “feebleminded” but rather institutionalized to hide her rape).Show More She was likewise the daughter of a “feeble minded” woman committed to the same institution.15 15.Buck, 274 U.S. at 205; Gould, supra note 14, at 334.Show More At seventeen years old, Carrie Buck became pregnant after being raped; her daughter Vivian was also deemed “feebleminded.”16 16.Gould, supra note 14, at 333, 336; Buck, 274 U.S. at 205.Show More After Vivian’s birth, the institution sought to sterilize Carrie Buck in accordance with Virginia’s compulsory sterilization statute.17 17.Buck, 274 U.S. at 205–06; Gould, supra note 14, at 331.Show More It should be noted that Vivian was removed from her mother after birth and placed in a foster home.18 18.Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell 104–05 (2008).Show More Following a series of appeals, the law was upheld as constitutional in part on the grounds that it served “the best interests of the patients and of society.”19 19.Buck, 274 U.S. at 206–08.Show More Concluding this historical decision, Justice Oliver Wendell Holmes, Jr. declared, “It is better for all the world, if . . . society can prevent those who are manifestly unfit from continuing their kind.”20 20.Id. at 207.Show More During the twentieth century, as many as 70,000 Americans, many of whom were people of color or whom had disabilities, were sterilized.21 21.Fresh Air, The Supreme Court Ruling That Led to 70,000 Forced Sterilizations, NPR (Mar. 17, 2016), https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations [https://perma.cc/5KYD-Z79X].Show More Notably, Buck v. Bell has never been overturned.22 22.Fifteen years after Buck v. Bell was decided, the Supreme Court struck down an Oklahoma law requiring that people with two or more convictions for felonious offenses be sterilized. Skinner v. Oklahoma, 316 U.S. 535, 536–37, 543 (1942). Although both Skinner and Buck concern involuntary sterilization statutes, Skinner’s analysis took a narrower focus, relating only to the punitive sterilization of criminals, thereby avoiding addressing the forced sterilization of people with disabilities. Id. at 542–43.Show More

Laws forbidding people with disabilities from marrying were another hallmark of the eugenics movement.23 23.Brooke Pietrzak, Marriage Laws and People with Mental Retardation: A Continuing History of Second Class Treatment, 17 Dev. Mental Health L. 1, 34–35 (1997).Show More Specifically, three eugenics-based justifications were put forth to advance marriage restrictions: “the potential children must be protected; people with [disabilities] themselves must be protected; and society at large must be protected.”24 24.Id. at 35.Show More For example, a Connecticut law banned “epileptics, imbeciles, and feebleminded persons” from marrying or having extramarital sexual relations before the age of forty-five.25 25.Robert J. Cynkar, Buck v. Bell: “Felt Necessities” v. Fundamental Values?, 81 Colum. L. Rev. 1418, 1432 (1981).Show More In 1974, a study found that over forty states had laws preventing people with intellectual disabilities from marrying.26 26.President’s Comm. on Mental Retardation, OHD 74-21002, Silent Minority 33 (1974).Show More The most recent systematic investigation of these statutes was undertaken in 1997 and found that thirty-three states still had laws restricting people with intellectual or psychiatric disabilities from marrying.27 27.Pietrzak, supra note 23, at 1–2. Although no known studies have systematically examined marriage laws as they apply to people with disabilities, scholars contend that these statutes continue to exist in some states. Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527, 548–49 (2014).Show More

B. Contemporary Reproductive Injustice

As Britney Spears’s recent testimony demonstrates, people with disabilities’ reproductive freedom continues to be controlled in a multitude of ways. For example, while nearly all states have repealed their involuntary sterilization laws, most states still permit sterilization with prior judicial authorization.28 28.See Vanessa Volz, Note, A Matter of Choice: Women with Disabilities, Sterilization, and Reproductive Autonomy in the Twenty-First Century, 27 Women’s Rts. L. Rep. 203, 207–08 (2006).Show More Recently, the parents of Mary Moe,29 29.Mary Moe is a pseudonym; Massachusetts General Law requires that informed consent proceedings for an abortion be kept confidential. Mass. Gen. Laws ch. 112, § 12R (2020).Show More a 32-year-old pregnant woman with a psychiatric disability, petitioned a Massachusetts court for guardianship over Mary Moe to consent to an abortion.30 30.In re Guardianship of Mary Moe, 960 N.E.2d 350, 352 (Mass. App. Ct. 2012).Show More Although Mary Moe vehemently opposed abortion, the trial court appointed her parents as co-guardians and authorized that Mary Moe be “coaxed, bribed, or even enticed . . . by ruse” into a hospital for an abortion.31 31.Id. at 353 (quoting the family court’s decision).Show More Further, the trial judge ordered sua sponte, and without notice, that Mary Moe be sterilized “to avoid this painful situation from recurring in the future.”32 32.Id. (quoting the family court’s decision).Show More Eventually, the decision was reversed on appeal, with the appellate court noting in regard to the sterilization order, “No party requested this measure, none of the attendant procedural requirements has been met, and the judge appears to have simply produced the requirement out of thin air.”33 33.Id. at 355.Show More Although Moe’s case had a positive outcome consistent with her articulated desires, her case demonstrates how disabled people experience threats to their reproductive freedom even with supposed judicial protections.

The “Ashley X” case provides another disturbing example of how the reproductive freedom of people with disabilities is subordinated. Ashley was a young girl with intellectual and physical disabilities.34 34.Daniel F. Gunther & Douglas S. Diekema, Attenuating Growth in Children with Profound Developmental Disability: A New Approach to an Old Dilemma, 160 Archives Pediatrics & Adolescent Med. 1013, 1014 (2006); Marcia H. Rioux & Lora Patton, Beyond Legal Smokescreens: Applying a Human Rights Analysis to Sterilization Jurisprudence, in Critical Perspectives on Human Rights and Disability Law 243, 243–44 (Marcia H. Rioux, Lee Ann Basser & Melinda Jones eds., 2011).Show More In 2004, at age six, a Washington hospital, with Ashley’s parents’ permission, performed a series of procedures, including growth attenuation via hormone therapy, a hysterectomy, and bilateral breast bud removal.35 35.Gunther & Diekema, supranote 34; Rioux & Patton, supra note 34, at 244.Show More Her physicians and family justified the permanent alteration of her body by arguing that the procedures ensured “the best possible quality of life,” by enabling her to be more easily cared for by her family, while also allowing her to “retain more dignity in a body that is healthier, more of a comfort to her, and more suited to her state of development.”36 36.The “Ashley Treatment”, Towards a Better Quality of Life for “Pillow Angels”, at 3, 12 (Mar. 17, 2012), http://pillowangel.org/Ashley%20Treatment.pdf [https://perma.cc/8E3Z-VCEQ] (the document is authored by: “Ashley’s Mom and Dad”).Show More Further, Ashley’s parents asserted, “Ashley has no need for her uterus since she will not be bearing children,”37 37.Id. at 10.Show More and her physicians contended that the hysterectomy benefited both Ashley and her family because it “eliminate[d] the complications of menses.”38 38.Gunther & Diekema, supranote 34, at 1015.Show More Thus, Ashley’s “best interest was equated with her parents’ ability to maintain her at home and being easily able to carry and move her.”39 39.Rioux & Patton, supra note 34, at 244–45.Show More Notably, Ashley’s parents successfully sought these procedures with just the authorization of an internal ethics board and not through adjudication.40 40.Id. at 244.Show More Years later, an investigation revealed that the hospital had violated state law in this matter.41 41.Amy Burkholder, Report: ‘Pillow Angel’ Surgery Broke Law, CNN (May 8, 2007), http://www.cnn.com/2007/HEALTH/05/08/ashley.ruling/index.html [https://perma.cc/Z8RD-LF78] (“Children’s Hospital, in acknowledging its error, said that beyond implementing changes to ensure that sterilization of disabled children doesn’t happen again without a court order, it will seek court approval for other procedures involved in the controversial growth attenuation therapy.”).Show More Nonetheless, the “Ashley Treatment” remains accepted globally, with more than 100 families estimated to have subjected their children to similar procedures while thousands more are said to have considered it.42 42.Ed Pilkington & Karen McVeigh, ‘Ashley Treatment’ on the Rise Amid Concerns from Disability Rights Groups, The Guardian (Mar. 15, 2012) http://www.guardian.co.uk/society/‌2012/mar/15/ashley-treatment-rise-amid-concerns/ [https://perma.cc/B5WF-ENKY].Show More Thus, “[i]f the parents and doctors are all on board, these sorts of sterilization decisions can easily fly under the radar and evade mechanisms of legal accountability.”43 43.Samuel R. Bagenstos, Disability and Reproductive Justice, 14 Harv. L. & Pol’y Rev. 273, 289 (2020).Show More

Sterilization remains a standard procedure for many people with disabilities. Indeed, several recent studies have found that disabled women, especially those with intellectual disabilities, are significantly more likely than nondisabled women to be sterilized and at younger ages.44 44.See Justine P. Wu et al., Female Sterilization Is More Common Among Women with Physical and/or Sensory Disabilities than Women Without Disabilities in the United States, 10 Disability & Health J. 400, 403 (2017); William Mosher et al., Contraceptive Use by Disability Status: New National Estimates from the National Survey of Family Growth, 97 Contraception 552, 555 (2018); Henan Li et al., Female Sterilization and Cognitive Disability in the United States, 2011–2015, 132 Obstetrics & Gynecology 559, 561 (2018).Show More Further, today, sterilization of people with disabilities is primarily “driven by parents, guardians, and social service providers who are uneasy . . . [that] they will incur the additional burden of caring for the offspring.”45 45.Beverly Horsburgh, Schrödinger’s Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 Cardozo L. Rev. 531, 572 (1996).Show More Tellingly, in petitions to courts for approval to sterilize people with disabilities or terminate their pregnancies, guardians often cite cost as a prevailing factor.46 46.Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8 Berkeley Women’s L.J. 122, 126 (1993).Show More In fact, in authorizing the sterilization of disabled people, courts often advance analogous presumptions to those put forward in Buck, such as that people with disabilities are “incapable of adequate parenting” and their children will “inevitably be a financial burden on the state.”47 47.Id.Show More Thus, while the “[e]ugenic rhetoric might have declined,” the “eugenic motivations and eugenic laws did not.”48 48.Mary Ziegler, Reinventing Eugenics: Reproductive Choice and Law Reform After World War II, 14 Cardozo J.L. & Gender 319, 350 (2008).Show More While sterilization should unquestionably be an option for permanent contraception for people who choose it, given the country’s history, it is not difficult to imagine that many of these sterilizations may be coerced.

Inadequate access to sexual and reproductive health services and information, including contraception, also thwarts disabled people’s reproductive autonomy. As Britney Spears’s experiences demonstrate, there is significant tension concerning people with disabilities and contraception. On the one hand, research indicates that disabled women have less contraception knowledge and lower contraception use compared to nondisabled women.49 49.Robyn M. Powell, Susan L. Parish, Monika Mitra, & Eliana Rosenthal, Role of Family Caregivers Regarding Sexual and Reproductive Health for Women and Girls with Intellectual Disability: A Scoping Review, 64 J. Intell. Disability Rsch. 131, 132 (2020) (citing studies).Show More On the other hand, like Britney Spears, some women with disabilities are forced by family members or guardians to use contraception out of fear that their disabled relative will become pregnant.50 50.Id. at 151 (citing studies).Show More In these instances, Britney Spears and others are in effect sterilized since they cannot reproduce due to forced contraception. Thus, some disabled people have inadequate access while other people are denied contraceptive decision-making. Extant research also suggests that pregnant women with disabilities experience higher risks of complications and poorer outcomes than nondisabled women because of inadequate access to health care.51 51.Monika Mitra, Linda M. Long-Bellil, Suzanne C. Smeltzer & Lisa I. Iezzoni, A Perinatal Health Framework for Women with Physical Disabilities, 8 Disability Health J.499, 499 (2015) (citing studies); Lesley A. Tarasoff et al., Health of Newborns and Infants Born to Women with Disabilities: A Meta-Analysis, 146 Pediatrics, e20201635, at 2 (2020) (citing studies); Ilhom Akobirshoev, Susan L. Parish, Monika Mitra & Eliana Rosenthal, Birth Outcomes Among US Women with Intellectual and Developmental Disabilities, 10 Disability & Health J. 406, 409tbl. 2 (2017) (comparing maternal and infant outcomes of women with and without intellectual disabilities).Show More Indeed, adverse perinatal outcomes are often the result of physical barriers, communication barriers, and programmatic barriers, including healthcare providers’ negative attitudes about sexuality and reproduction among disabled women.52 52.Robyn M. Powell, Erin E. Andrews & Kara B. Ayers, Becoming a Disabled Parent: Eliminating Access Barriers to Health Care Before, During, and After Pregnancy, 96 Tul. L. Rev. (forthcoming 2021) (manuscript at 2), https://papers.ssrn.com/sol3/papers.cfm?abstract‌_id=3808017 [https://perma.cc/3JD2-WD5G] (interviewing disabled parents about their experiences accessing health care services).Show More

Finally, prejudice and speculation about the competencies of parents with disabilities—emulating those raised during the eugenics movement—have led to contemporary discriminatory child welfare, family law, and adoption and foster care policies and practices that assume parental unfitness.53 53.See generally Nat’l Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children 15 (2012) [hereinafter “Rocking the Cradle”], https://www.ncd.gov/sites/default/files/Documents/NCD_Parenting_508_0.pdf [https://perma.cc/UB7C-XMMG] (“The report provides a comprehensive review of the barriers and facilitators people with diverse disabilities—including intellectual and developmental, psychiatric, sensory, and physical disabilities—experience when exercising their fundamental right to create and maintain families, as well as persistent, systemic, and pervasive discrimination against parents with disabilities. The report analyzes how U.S. disability law and policy apply to parents with disabilities in the child welfare and family law systems, and the disparate treatment of parents with disabilities and their children. Examination of the impediments prospective parents with disabilities encounter when accessing assisted reproductive technologies or adopting provides further examples of the need for comprehensive protection of these rights.”).Show More For example, disabled parents experience disproportionate rates of child welfare system involvement and loss of parental rights.54 54.Id. at 16.Show More Parents with disabilities also contend with state statutes that include disability as grounds for the termination of parental rights.55 55.Id. at 265–300 (finding that over two-thirds of state dependency laws list parental disability as grounds for termination of parental rights).Show More Family courts often deny parents with disabilities custody of or visitation with their children.56 56.Robyn M. Powell, Family Law, Parents with Disabilities, and the Americans with Disabilities Act, 57 Fam. Ct. Rev. 37, 38 (2019) (“Indeed, parents with disabilities contend with substantial and persistent bias within the family law system, often threatening their custody and visitation rights.”).Show More For example, Britney Spears has had limited access to her children since she was placed under conservatorship.57 57.Laura Rizzo, Inside Britney Spears’ Custody Battle with Kevin Federline for Kids Sean Preston and Jayden, Life & Style Mag. (June 24, 2021), https://www.lifeandstylemag.com/‌posts/does-britney-spears-have-custody-of-kids-preston-and-jayden/ [https://perma.cc/EQY3-9KZ3] (explaining that Britney Spears had 30% custody at the time and was reportedly seeking 50%).Show More Meanwhile, foster care and adoption agencies regularly discriminate against prospective disabled parents based on presumptions that they are unfit to care for children.58 58.Rocking the Cradle,supranote 53, at 153–66 (describing the ways prospective parents with disabilities experience discrimination within the foster care and adoption system).Show More

II. Reproductive Justice and Disability Justice

Britney Spears’s tragic experiences are a stark reminder that nearly 100 years after the infamous Buck v. Bell decision, reproductive freedom is still denied to far too many disabled people, often because of discriminatory laws and policies. Thus, attention by activists, legal professionals, scholars, and policymakers to these matters is urgently needed. The four guiding principles for achieving reproductive justice for disabled people proposed in Part III infra are guided by two complementary frameworks: reproductive justice and disability justice. Both reproductive justice and disability justice are intersectional social movements, theories, and praxes which provide important lenses for analyzing and responding to the ongoing weaponization of reproduction to subjugate people with disabilities. This Part briefly describes each framework.

A. Reproductive Justice

Reproductive justice is based on the international human rights framework. It draws from reproductive rights and social justice. Reproductive justice was first “conceived in 1994 by feminists of color to conceptualize reproductive rights struggles embedded in social justice organizing that simultaneously challenged racism and classism, among other oppressions.”59 59.Zakiya Luna & Kristin Luker, Reproductive Justice, 9 Ann. Rev. L. & Soc. Sci. 327, 328 (2013).Show More According to Loretta Ross, co-founder of the SisterSong Women of Color Reproductive Health Collective, “[t]he Reproductive Justice framework analyzes how the ability of any woman to determine her own reproductive destiny is linked directly to the conditions in her community—and these conditions are not just a matter of individual choice and access.”60 60.Loretta Ross, What is Reproductive Justice?, in Reproductive Justice Briefing Book: A Primer on Reproductive Justice and Social Change 4, https://www.law.berkeley.edu/php-programs/courses/fileDL.php?fID=4051 [https://perma.cc/5SSG-QVSD] (last visited Oct. 1, 2021) [hereinafter “Reproductive Justice Briefing Book”].Show More

Drawing from intersectionality, which “illustrate[s] how racial and gender oppression interact in the lives of Black women,”61 61.Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 73 (2017).Show More reproductive justice is “based on the understanding that the impacts of race, class, gender, and sexual identity oppressions are not additive but integrative,”62 62.Id. at 74.Show More and understands that only a holistic lens can address them. Accordingly, reproductive justice centers on “the ways in which aspects of social status and social identity (e.g., age, race/ethnicity, socioeconomic class, sexual orientation, gender identity, religion, ability) combine to impact women’s experiences.”63 63.Joan C. Chrisler, Introduction: A Global Approach to Reproductive Justice—Psychosocial and Legal Aspects and Implications, 20 Wm. & Mary J. Women & L. 1, 4 (2013).Show More In other words, reproductive justice recognizes the ways in which intersecting factors, such as race and disability, constrain the reproductive freedom of marginalized communities.

Reproductive justice emerged as a movement because women of color and other marginalized communities felt that the reproductive rights movement disregarded their needs and experiences.64 64.Sarah London, Reproductive Justice: Developing a Lawyering Model, 13 Berkeley J. Afr.-Am. L. & Pol’y 71, 75 (2011).Show More Reproductive justice, therefore, goes beyond our traditional understanding of reproductive rights in two critical ways. First, reproductive justice recognizes the importance of choice while also considering the broader social, legal, and institutional structures that affect people’s reproductive decision-making.65 65.Reproductive Justice Briefing Book, supranote 60, at 4. (“Moving beyond a demand for privacy and respect for individual decision making to include the social supports necessary for our individual decisions to be optimally realized, this framework also includes obligations from our government for protecting women’s human rights. Our options for making choices have to be safe, affordable and accessible, three minimal cornerstones of government support for all individual life decisions.”).Show More Second, and relatedly, reproductive justice applies to all aspects of reproductive freedom instead of just abortion rights.66 66.Id. (“Instead of focusing on the means—a divisive debate on abortion and birth control that neglects the real-life experiences of women and girls— the Reproductive Justice analysis focuses on the ends: better lives for women, healthier families, and sustainable communities.”).Show More Accordingly, reproductive justice “includes not only a woman’s right not to have a child, but also the right to have children and to raise them with dignity in safe, healthy, and supportive environments.”67 67.Dorothy Roberts, Reproductive Justice, Not Just Rights, Dissent (Fall 2015), https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights [https://perma.cc/C37U-GS88]; see also Luna & Luker, supra note 59, at 343 (“[R]eproductive justice is equally about the right to not have children, the right to have children, the right to parent with dignity, and the means to achieve these rights.”).Show More Thus, “[b]y moving beyond the traditional pro-choice narrative and into the reality of lived experiences within the women’s communities, the reproductive justice movement focuses on the inequality among groups of women that inhibits access to these rights for some more than others.”68 68.Seema Mohapatra, Law in the Time of Zika: Disability Rights and Reproductive Justice Collide, 84 Brook. L. Rev. 325, 343 (2019).Show More In other words, reproductive justice challenges the pro-choice/pro-life dichotomy, viewing “choice” as something that divides people in policy and practice because it accepts that all people have an equal ability to make the same choices.

Reproductive justice necessitates “an integrated approach that draws on constitutional protections and movement-based policy strategies.”69 69.Priscilla A. Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191, 2240 (2018).Show More Further, reproductive justice recognizes that “many kinds of laws shape the conditions in which women conceive and bear children.”70 70.Reva B. Siegel, ProChoiceLife: Asking Who Protects Life and How—and Why It Matters in Law and Politics, 93 Ind. L.J. 207, 210 (2018).Show More Reproductive justice emphasizes an affirmative government role “in ensuring that all women have the social, political, and economic power and resources to make the best decisions for themselves and their families.”71 71.Sujatha Jesudason & Julia Epstein, Editorial, The Paradox of Disability in Abortion Debates: Bringing the Pro-Choice and Disability Rights Communities Together, 84 Contraception 541, 542 (2011).Show More Rather than relying only on litigation and attorneys, reproductive justice also engages in grassroots and community organizing.72 72.London, supra note 64, at 71–72.Show More

Extant legal scholarship has demonstrated the importance of applying reproductive justice to dissect and address the reproductive oppression of people with disabilities.73 73.See, e.g., Robyn M. Powell, Confronting Eugenics Means Finally Confronting Its Ableist Roots, 27 Wm. & Mary J. Race, Gender & Soc. Just. 607, 628–31 (2021) (examining the history of eugenics in the United States and calling for a justice-based approach to address the role of ableism in eugenics); Bagenstos, supra note 43, at 279–86; Mary Ziegler, The Disability Politics of Abortion, 2017 Utah L. Rev. 587, 627–30 (2017) (describing ways in which reproductive justice should be used to advocate for programs to support people with disabilities as a mechanism for reducing disability-based abortions); Mohapatra, supra note 68, at 325–27 (2019) (using the Zika virus to highlight the tensions between reproductive rights and disability rights); Dorothy Roberts & Sujatha Jesudason, Movement Intersectionality: The Case of Race, Gender, Disability, and Genetic Technologies, 10 Du Bois Rev. 313, 316–18 (2013) (proposing how organizing based on an intersectional analysis can help facilitate alliances between reproductive justice, racial justice, women’s rights, and disability rights activists to develop strategies to address reproductive genetic technologies); Roberts, supra note 67 (describing the failures of the reproductive rights movement to respond to the needs of marginalized communities, including people with disabilities, and calling for a reproductive justice framework instead).Show More As Samuel Bagenstos notes, “[j]ust as ‘regulating Black women’s reproductive decisions has been a central aspect of racial oppression in America,’ regulating disabled people’s reproductive decisions has been a central aspect of disability oppression in America.”74 74.Bagenstos, supranote 43, at 285 (quoting Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 6 (1997)).Show More Hence, reproductive justice can be engaged to confront the myriad oppressions that prohibit people with disabilities from enjoying their reproductive freedoms by confronting and disrupting the longstanding systems that propagate reproductive injustice.

B. Disability Justice

Disability justice is an equally important lens for dislocating the nation’s ongoing reproductive oppression of people with disabilities. Indeed, “reproductive justice is disability justice.”75 75.Sins Invalid, Skin, Tooth, and Bone—The Basis of Movement is Our People: A Disability Justice Primer 59 (2d ed. 2019) (capital letters omitted).Show More Specifically, disability justice provides an important framework for examining ableism as it relates to other forms of oppression and identity. Disability justice was first conceived in 2005 by the Disability Justice Collaborative, a group of Black, brown, queer, and trans people.76 76.Leah Lakshmi Piepzna-Samarasinha, Care Work: Dreaming Disability Justice 11 (2018).Show More Disability justice includes ten fundamental principles needed to achieve a truly inclusive and just society: “intersectionality . . . leadership of those most impacted . . . anti-capitalist politics . . . cross-movement solidarity . . . recognizing wholeness . . . sustainability . . . commitment to cross-disability solidarity . . . interdependence . . . collective access . . . [and] collective liberation.”77 77.Sins Invalid, supranote 75, at 22–26 (capital letters omitted).Show More

Similar to reproductive justice, disability justice distinguishes itself from a rights-based approach and calls for a holistic approach to disrupting the longstanding systems that cause oppression. According to Sins Invalid, a disability justice performance project, “Rights-based strategies often address the symptoms of inequity but not the root. The root of disability oppression is ableism and we must work to understand it, combat it, and create alternative practices rooted in justice.”78 78.Id. at 15, 47.Show More Thus, “[w]here disability rights seeks to change social conditions for some disabled people via law and policy, disability justice moves beyond law and policy: It seeks to radically transform social conditions and norms in order to affirm and support all people’s inherent right to live and thrive.”79 79.Talila “TL” Lewis, Disability Justice Is an Essential Part of Abolishing Police and Prisons, Level (Oct. 7, 2020), https://level.medium.com/disability-justice-is-an-essential-part-of-abolishing-police-and-prisons-2b4a019b5730 [https://perma.cc/J5QL-9UNR].Show More In other words, “[a]t its core, the disability rights framework centers people who can achieve status, power and access through a legal or rights-based framework, which we know is not possible for many disabled people, or appropriate for all situations.”80 80.Sins Invalid, supra note 75, at 15.Show More Disability justice is based on community and grassroots organizing.

Further, like reproductive justice, intersectionality81 81.In 1989, Kimberlé Crenshaw coined the term “intersectionality” to help explain the oppression of African-American women. SeeKimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1 U. Chi. Legal F. 139, 140 (1989). Since then, intersectionality has been used to study how people who are members of multiple socially marginalized communities experience discrimination, including people with disabilities. See, e.g., Beth Ribet, Surfacing Disability Through a Critical Race Theoretical Paradigm, 2 Geo. J.L. & Mod. Critical Race Persps. 209, 211–22 (2010).Show More is a fundamental aspect of disability justice. Indeed, disability justice was developed as a “movement-building framework that would center the lives, needs, and organizing strategies of disabled queer and trans and/or Black and brown people marginalized from mainstream disability rights organizing’s white-dominated, single-issue focus.”82 82.Piepzna-Samarasinha, supra note 76, at 11.Show More Notably, “disability justice values an intersectional analysis which requires us to consider the complexities of reproductive justice in the context of ableism.”83 83.Sins Invalid, Reproductive Justice is Disability Justice 1, https://www.sinsinvalid.‌org/s/Reproductive_Justice_is_Disability_Justice.pdf [https://perma.cc/6XUF-Z8JL] (last visited June 26, 2021).Show More For example, disabled people at the intersection of other marginalized identities, such as disabled people of color or LGBTQ+ disabled people, experience even greater reproductive oppression. Hence, “[p]eople who exist at the intersection of race and disability experience a multi-dimensional form of discrimination that is continually at risk of being flattened to a single dimension—either race or disability—due to the limitations of our collective understanding of intersectionality.”84 84.Alice Abrokwa, “When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability, 24 Mich. J. Race & L.15, 20–21 (2018).Show More

III. Achieving Reproductive Justice: Four Guiding Principles

“Big problems require big solutions.” –Ruth Wilson Gilmore85 85.Ruth Wilson Gilmore, Foreword to Dan Berger, The Struggle Within: Prisons, Political Prisoners, and Mass Movements in the United States viii (2014).Show More

The ongoing reproductive control of Britney Spears exposes the persistent subordination of people with disabilities. Moreover, it shines a light on the urgent need for a long-overdue conversation: How does the United States finally confront its deplorable history of weaponizing reproduction to subjugate disabled people? As this Essay demonstrates, the reproductive oppression experienced by people with disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Indeed, the problems of reproductive oppression are complex and require an interdisciplinary and interprofessional response that engages all fields of expertise, including law, medicine, public health, social work, and organizing, among others.

Below, I propose four guiding principles that I believe are necessary for a jurisprudential and legislative approach to achieving reproductive justice for people with disabilities. First, achieving reproductive justice for disabled people requires activists, scholars, legal professionals, and policymakers to actively engage people with disabilities. Second, legal and policy responses must be developed and implemented to ensure people with disabilities’ rights to autonomy and self-determination are protected. Third, sexual and reproductive health services and information must be accessible and available for people with disabilities. Finally, people with disabilities and their families must be guaranteed rights, justice, and wellness for themselves and their families.

These guiding principles, which are grounded in the extant legal and social science scholarship, are foundational elements of more significant legal and policy changes that will need to be fleshed out in considerable detail. They are outlined in broad strokes to help facilitate a discussion among activists, legal professionals, scholars, and policymakers about the basic contours of a paradigm shift that supports the coalescence of reproductive justice and disability justice. Disrupting the longstanding systems that oppress disabled people’s reproductive freedom will undeniably require a multifaceted approach. However, the need for such action could not be more timely or clear.

A. Center People with Disabilities as Leaders

Both reproductive justice and disability justice underscore the importance of centering people from marginalized communities as leaders in developing and implementing laws and policies that impact them. Indeed, a fundamental aspect of justice-based approaches is “listening to, engaging, and developing affected communities.”86 86.Emily A. Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice, 65 Am. U. L. Rev. 275, 338 (2015) (describing the importance of actively engaging socially marginalized communities to address inequities).Show More According to Sins Invalid, “By centering the leadership of those most impacted, we keep ourselves grounded in real-world problems and find creative strategies for resistance.”87 87.Sins Invalid,supra note 75, at 23.Show More Centering disabled people as leaders is also consistent with the disability community’s mantra, “nothing about us, without us,” which emphasizes that people with disabilities should be actively involved in legal and policy efforts that affect them.88 88.James I. Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment 3 (1998).Show More Undeniably, when the voices of marginalized communities, including people with disabilities, are centered, solutions that benefit all members of society are conceived.

Cross-movement organizing is an important aspect of disrupting the reproductive oppression of disabled people. Historically, there have been significant tensions—particularly concerning issues of prenatal genetic testing for markers of disability and abortion on grounds of fetal disability—between the disability rights and reproductive rights movements.89 89.Bagenstos, supra note 43, at 280–81.Show More However, as the Center for Reproductive Rights notes, “[t]he cost of ignoring tensions between the disability rights and reproductive rights movements is high.”90 90.Center for Reproductive Rights, Shifting the Frame on Disability Rights for the U.S. Reproductive Rights Movement 2 (2017), https://reproductiverights.org/wp-content/uploads/‌2020/12/Disability-Briefing-Paper-FINAL.pdf [https://perma.cc/52GS-T2NV].Show More Accordingly, the Center for Reproductive Rights intentionally developed partnerships with disability rights groups in an effort to begin bridging the gap between the movements.91 91.See id. at 1–2.Show More These discussions are an important reminder that the movements must work collectively to confront the subjugation of disabled people’s reproductive freedom, and that intentionally including people with disabilities is critical to developing legal and policy responses.

Accordingly, the first guiding principle to achieving reproductive justice for disabled people requires activists, scholars, legal professionals, and policymakers to actively engage people with disabilities, especially disabled people of color and LGBTQ+ disabled people, in leading legal and policy responses to address reproductive oppression. Such engagement will require an understanding of and respect for disabled people sharing their lived experiences and should elevate people with disabilities to leadership positions within movements. Because disabled people are the experts of their lives, centering them will lead to legal and policy responses that are disability-competent and address the actual reproductive needs of people with disabilities.

As previously explained, centering disabled people as leaders should also lead to cross-movement organizing and a broader effort to foster alliances and grow partnerships among the impacted communities. Cross-movement solidarity will produce progress toward specific policy goals and increase and enhance the dignity of people who can value one another’s shared humanity. Practically, this means that reproductive justice activists must make concerted efforts to include disabled people in their work. Similarly, disability rights and justice activists must recognize the diversity of the disability community and ensure that disabled people from marginalized communities hold leadership roles within the movements. To achieve reproductive justice, disabled people, especially disabled people of color and LGBTQ+ people, must be centered in all legal and policy efforts.

B. Protect Autonomy and Self-Determination

As Britney Spears’s heartbreaking ordeal exposes, people with disabilities are often denied bodily autonomy and self-determination, which in turn can result in reproductive oppression. Constitutional doctrine relating to abortion is rooted in a principle of autonomy.92 92.See Pamela S. Karlan & Daniel R. Ortiz, In a Diffident Voice: Relational Feminism, Abortion Rights, and the Feminist Legal Agenda, 87 Nw. U. L. Rev.858, 876 (1993) (“The language of autonomy has provided the central rationale for protecting individual women’s control over the abortion decision.”).Show More Specifically, constitutional protections of abortion rights are rooted in the guarantee of “liberty” in the Due Process Clause of the Fourteenth Amendment.93 93.Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (“Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding [in Roe v. Wade] that the Constitution protects a woman’s right to terminate her pregnancy in its early stages . . . that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.”).Show More Indeed, the Supreme Court of the United States has held that the liberty protected by the U.S. Constitution involves freedom in making “the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy.”94 94.Id. at 851.Show More Likewise, a cornerstone of the disability rights movement is autonomy.95 95.Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 Vand. L. Rev. 745, 795 (2007) (“[P]aternalism has historically been one of the most significant contributors to the disadvantage people with disabilities experience. Non-disabled parents, teachers, doctors, rehabilitation counselors, employers, and others have arrogated to themselves the prerogative to decide what is best for people with disabilities. In so doing, they have deprived people with disabilities of opportunities to work and participate in the community. They have denied people with disabilities the autonomy that consists in making one’s own choices. And they have denied people with disabilities the dignity of risk— the opportunity to develop their skills, test them in the world, and succeed or fail according to their talents.” (internal quotation marks omitted)).Show More Indeed, disabled people have continuously fought against paternalism and the notion that other people—namely, family members and professionals—are best equipped to make decisions for disabled people.96 96.Charlton, supra note 88, at 3 (“Control has universal appeal for [disability rights movement] activists because the needs of people with disabilities and the potential for meeting these needs are everywhere conditioned by a dependency born of powerlessness, poverty, degradation, and institutionalization. This dependency, saturated with paternalism, begins with the onset of disability and continues until death.”)Show More

Guardianship, also known as conservatorship in some states, is a draconian and antiquated system that has existed for centuries and robs disabled people of autonomy and self-determination.97 97.Candida Moss, The Romans, the Supreme Court, and Britney Spears—Conservatorship Abuse Has Been Happening for 2000 Years, The Daily Beast (June 26, 2021), https://www.thedailybeast.com/britney-spears-the-romans-and-the-supreme-court-conservatorship-abuse-has-been-happening-for-2000-years [https://perma.cc/7UJL-389G] (tracing the history of guardianship to Roman law).Show More According to disability justice advocates:

While the law varies from state to state, guardianship orders routinely authorize third parties to make decisions about the most personal and important decisions in an individual’s life—choices that impact the person’s own body and reproductive health; how and where they receive medical, psychiatric, and psychological treatment; how the money and resources they work to earn are spent; and even with whom they associate.98 98.Ctr. for Pub. Representation, Statement from Disability Justice and Supported Decision-Making Advocates: Britney Spears Spotlights the Need for Change Now (June 25, 2021), https://supporteddecisions.org/2021/06/25/britney-spears/ [https://perma.cc/SKK5-2HKH].Show More

Notably, like Britney Spears, many people under guardianship are forced to use contraception to prevent pregnancy.99 99.Sara Luterman, For Women Under Conservatorship, Forced Birth Control Is Routine, The Nation(July 15, 2021), https://www.thenation.com/article/society/conservatorship-iud-britney-spears/ [https://perma.cc/Q9WD-SSCC].Show More According to the National Council on Disability, an estimated 1.3 million people with disabilities currently have guardians.100 100.Nat’l Council on Disability, Beyond Guardianship: Toward Alternatives that Promote Greater Self-Determination 17 (2018), https://ncd.gov/sites/default/files/NCD_Guardianship_‌Report_Accessible.pdf [https://perma.cc/D8WG-5HBX].Show More

Although “[t]he guardianship system is designed as a last resort, applied only when an individual lacks capacity to make decisions,” there is “reason to believe that guardianships are imposed on many individuals without sufficient evidence of their decision-making incapacity and that, in some cases, disability alone appears to be used as a sufficient justification for the imposition of guardianship.”101 101.Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell, Supported Decision-Making: A Viable Alternative to Guardianship?, 117 Pa. St. L. Rev. 1111, 1117 (2013).Show More Consequently, the second guiding principle for achieving reproductive justice for disabled people requires the development and implementation of legal and policy responses that ensure people with disabilities’ autonomy and self-determination are protected. For example, disability rights advocates are pushing states to implement supported decision-making as a least restrictive alternative to guardianship.102 102.Ctr. for Pub. Representation, U.S. Supported Decision-Making Laws, https://supported‌decisions.org/resources-on-sdm/state-supported-decision-making-laws-and-court-decisions/ [https://perma.cc/L58P-TTEY] (last visited Sept. 2, 2021) (listing states that have implemented supported decision-making).Show More Broadly, supported decision-making provides people with disabilities greater autonomy in their choices while receiving assistance from people whom they choose and trust.103 103.Ctr. for Pub. Representation, About Supported Decision-Making, https://supported‌decisions.org/about-supported-decision-making/ [https://perma.cc/KG45-F327] (last visited June 25, 2021).Show More It “does not require court involvement and can be coupled with other legal tools, such as powers of attorney and advance health care directives, that promote self-determination and autonomy.”104 104.Ctr. for Pub. Representation, supra note 98.Show More In addition to states enacting supported decision-making, efforts are needed to thwart the “school-to-guardianship pipeline,” whereby schools encourage parents to attain guardianship of their children once they reach the age of majority.105 105.Nat’l Council on Disability, Turning Rights into Reality: How Guardianship and Alternatives Impact the Autonomy of People with Intellectual and Developmental Disabilities 29–36 (2019), https://ncd.gov/sites/default/files/NCD_Turning-Rights-into-Reality_508_0.‌pdf [https://perma.cc/H2PR-X7Y7].Show More In sum, to achieve reproductive justice, legal and policy efforts must protect the autonomy and self-determination of people with disabilities, including ensuring that they receive the least restrictive supports and abolishing guardianship.

C. Ensure Sexual and Reproductive Health Services and Information Are Accessible and Available to People with Disabilities

As described in Part II, disabled people experience a range of barriers to sexual and reproductive health services and information, often resulting in inadequate access and adverse outcomes.106 106.See supra Section II.B.Show More Although federal disability laws, including the Americans with Disabilities Act (“ADA”),107 107.Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213.Show More Section 504 of the Rehabilitation Act of 1973 (“Section 504”),108 108.Rehabilitation Act of 1973, 29 U.S.C. §§ 701–796.Show More and Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”)109 109.Patient Protection and Affordable Care Act, 42 U.S.C. § 18116(a); 45 C.F.R §§ 92.102–105.Show More mandate that healthcare providers be accessible and prohibit disability-based discrimination, these laws are often violated.110 110.Powell, supranote 73, at 625–27 (describing federal disability laws’ application to matters concerning reproductive justice).Show More Moreover, disabled people often do not have access to adequate sexual and reproductive health information, such as sexuality education.111 111.Robyn M. Powell & Michael Ashley Stein, Persons with Disabilities and Their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis, 11 Frontiers L. China 53, 57–58 (2016) (explaining the implications of disabled people not receiving sexuality education).Show More Without comprehensive information, people with disabilities are unable to make informed decisions about their reproductive wellbeing. Further, because disabled people are more likely to be poor and receive public benefits, policies such as the Hyde Amendment, which bars the use of federal Medicaid funds for abortion care,112 112.SeeHyde Amendment Codification Act, S. 142, 113th Cong. (2013) (originally passed in 1977);Alina Salganicoff, Laurie Sobel & Amrutha Ramaswamy, The Hyde Amendment and Coverage for Abortion Services, Kaiser Fam. Found.(Mar. 5, 2021), https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services/ [https://perma.cc/NT7W-QL6W].Show More often inhibit their access to comprehensive sexual and reproductive health services.113 113.Rocking the Cradle,supranote 53, at 178 (noting that “Medicaid and Medicare [are] the primary health insurers for people with disabilities”).Show More

As such, the third guiding principle for achieving reproductive justice for disabled people necessitates ensuring that sexual and reproductive health services and information are accessible and available. Greater compliance with and enforcement of existing legal protections are urgently needed to ensure reproductive justice for people with disabilities. To that end, the United States Departments of Justice (DOJ) and Health and Human Services’ Office for Civil Rights (OCR) should prioritize the reproductive rights of people with disabilities, such as by investigating alleged violations of disability-based discrimination by reproductive health providers and enforcing the law as necessary.

Disabled people also need access to comprehensive and accessible information about sexuality and reproduction. For example, existing research indicates that people with disabilities may be at increased risk of exposure to HIV/AIDS due in part to limited access to education and information about prevention.114 114.Nora Ellen Groce et al., HIV Issues and People with Disabilities: A Review and Agenda for Research, 77 Soc. Sci. & Med. 31–37 (2013) (analyzing research about the intersection of HIV/AIDS and people with disabilities and calling for greater attention to the topic).Show More For people with intellectual disabilities, not receiving sexual education has led to high rates of sexually transmitted infections and sexual assaults, along with limited ability to report abuses because of lack of knowledge.115 115.Amy Swango-Wilson, Meaningful Sex Education Programs for Individuals with Intellectual/Developmental Disabilities, 29 Sexuality & Disability 113–16 (2011).Show More

Further, a health justice approach is needed, recognizing that the social determinants of health impact access to sexual and reproductive health services and information.116 116.See generallyBenfer, supra note 86 (explaining the social determinants of health and the health justice framework).Show More Developing and implementing laws and policies that are consistent with health justice will allow for addressing factors such as poverty and transportation and how they affect disabled people’s access to sexual and reproductive health services and information. Hence, by addressing the social determinants of health, people will have greater access to those services and information.

D. Guarantee Rights, Justice, and Wellness for People with Disabilities and Their Families

Finally, people with disabilities and their families encounter numerous laws and policies that threaten their rights, justice, and wellness. For example, consider a parent with a physical disability who is unemployed and receives monthly Supplemental Security Income (“SSI”) benefits of $794.117 117.Soc. Sec. Admin., SSI Federal Payment Amounts for 2021, https://www.ssa.gov/oact/‌cola/SSI.html [https://perma.cc/DW5R-6MY3] (last visited July 20, 2021).Show More She also receives Medicaid, which pays for in-home personal care assistants. Although she would like to work, at least part-time, draconian rules proscribe that she will lose her SSI benefits if she earns more than $1,310.118 118.Soc. Sec. Admin., Substantial Gainful Activity, https://www.ssa.‌gov/oact/cola/sga.html [https://perma.cc/9YWP-XS5G] (last visited September 2, 2021).Show More Since Medicaid eligibility in her state is tied to receipt of SSI benefits, she will also lose Medicaid and needed in-home supports. Thus, stringent federal and state rules force this mother to live in poverty.

Reproductive justice should not depend on where people live, how much they make, or who they are. And yet, as the above narrative illustrates, all too often these factors infringe on people with disabilities’ reproductive justice. For example, for people with disabilities, especially disabled parents, poverty is a persistent issue that directly affects access to housing, food, and other basic necessities needed for people’s wellbeing.119 119.Rocking the Cradle,supra note 53, at 202 (“[T]he most significant difference between parents with disabilities and parents without disabilities is economic . . . .”).Show More Although many people with disabilities receive government benefits, these benefit programs often keep people in poverty. Antiquated rules and restrictions force some people with disabilities to choose between creating families and receiving necessary income assistance.120 120.While marriage is certainly not required to form families, it should be available to people with disabilities the same as it is for nondisabled people. However, strict asset programs prevent disabled people from marrying. See Waterstone, supra note 27, at 549 n. 132.Show More Poverty is also a persistent issue because of high rates of unemployment among disabled people. U.S. Census Bureau data shows that compared to nondisabled people, people with disabilities have lower rates of employment, lower median annual earnings, and higher rates of poverty.121 121.U.S. Census Bureau, Selected Economic Characteristics for the Civilian Noninstitutionalized Population by Disability Status, https://data.census.gov/‌cedsci/table?t=Disability&tid=ACSST1Y2019.S1811&hidePreview=true&vintage=2018 [https://perma.cc/6JFJ-DATH] (last visited July 11, 2021).Show More

People with disabilities, especially disabled people of color and LGBTQ+ people, often additionally contend with discriminatory legal and social service systems that separate them from their families.122 122.See Section I.B supra (noting that disabled parents have disproportionate rates of child welfare system involvement and termination of parental rights).Show More For example, the child welfare system—more accurately known as the family policing system123 123.‘Abolition Is the Only Answer’: A Conversation with Dorothy Roberts, Rise Mag. (Oct. 20, 2020), https://www.risemagazine.org/2020/10/conversation-with-dorothy-roberts/ [https://perma.cc/9DMC-DQBL] (“Policing captures what this system does. It polices families with the threat of taking children away. Even when its agents don’t remove children, they can take children and that threat is how they impose their power and terror. It is a form of punishment, harm and oppression.” (quoting Dorothy Roberts) (emphasis in original)).Show More—targets people of color and disabled parents using pathology, control, and punishment.124 124.See generallyRobyn M. Powell, Achieving Justice for Disabled Parents and Their Children: An Abolitionist Approach, 33 Yale J.L. & Feminism (forthcoming 2022) (on file with author) (arguing that child welfare system abolition is necessary to protect disabled parents and their children).Show More An estimated two-thirds of state child welfare system laws explicitly include parental disability, usually intellectual or psychiatric disabilities, as grounds for termination of parental rights.125 125.Rocking the Cradle,supra note 53, at 16.Show More Thus, in many states, disabled people are lawfully denied their right to raise children.

Accordingly, the fourth guiding principle recognizes that to achieve reproductive justice, people with disabilities and their families must be guaranteed rights, justice, and wellness for themselves and their families. Changing the income and asset rules that keep people with disabilities in poverty would enable them to have livable incomes and the families they desire. Employment opportunities similarly need to be expanded so that people with disabilities can work and earn livable wages. Further, parents with disabilities and their children must be able to live free from fear of unnecessary separation and have access to non-punitive supports and resources. Thus, the child welfare system, and other carceral systems, must be abolished to achieve true reproductive justice. Legal and policy solutions that reflect the fourth guiding principle will need to be comprehensive and transformative.

Conclusion

Britney Spears’s appalling experiences are a stark reminder that nearly 100 years after the infamous Buck v. Bell decision, reproductive freedom is still denied to far too many disabled people. Although forced sterilization of people with disabilities has waned over time, reproductive justice still has not been realized for all people with disabilities. Indeed, revelations about Britney Spears’s harrowing struggles show that the right to decide whether to have children is still not fully afforded to people with disabilities.

The reproductive oppression experienced by people with disabilities is deeply entrenched in our laws, in our policies, and in our collective conscience. Accordingly, addressing the persistent reproductive oppression of people with disabilities will require us to transform our laws and policies radically. Informed by reproductive justice and disability justice frameworks, the four guiding principles set forth above provide a vision for transforming laws and policies to ensure reproductive justice for people with disabilities. This Essay seeks to advance a long-overdue conversation about reproductive justice for people with disabilities by providing a starting point for activists, scholars, legal professionals, and policymakers to use, critique, and improve upon. The need for such action could not be more timely or clear.

  1. * JD, PhD, Bruce R. Jacob Visiting Assistant Professor at Stetson University College of Law. Concepts from this Essay were presented during ReproAction’s webinar, “#FreeBritney? Respecting the Autonomy and Decision-Making of People with Disabilities,” on September 29, 2020. This Essay was supported by a generous research grant from the Stetson University College of Law. I extend my appreciation to Edson Abadia, Jr., for his critical research assistance. ↑

  2. Jem Aswad, Read Britney Spears’ Full Statement Against Conservatorship: ‘I Am Traumatized’, Variety (June 23, 2021, 3:59 PM), https://variety.com/2021/music/‌news/britney-spears-full-statement-conservatorship-1235003940/ [https://perma.cc/QJ6Y-9UBH] (transcript of Spears’s June 23, 2021, statement to Los Angeles Superior Court Judge, Brenda Penny). ↑

  3. Id. At the time of this writing, Britney Spears’s case is ongoing. On September 29, 2021, the court suspended Britney Spears’s father, James Spears, as his daughter’s conservator and temporarily replaced him with a new conservator. Joe Coscarelli, Julia Jacobs & Liz Day, Judge Frees Spears From Father’s Control (Oct. 2, 2021), https://www.nytimes.com/‌2021/09/29/arts/music/britney-spears-court-decision-conservatorship.html [https://perma.cc/9N3S-S8NA]. The court has scheduled a hearing for November 12, 2021, to determine whether the conservatorship should end. Id. ↑

  4. Aswad, supra note 1. ↑

  5. Id. ↑

  6.  Consistent with disability rights and disability justice movements, this Essay acknowledges the importance of language in shaping how we think about disability and how ableism can pervade language choices as well as reflect and perpetuate disability-based subordination. Lydia X. Z. Brown, Ableism/Language, Autistic Hoya (Feb. 27, 2021), https://www.autistichoya.com/p/ableist-words-and-terms-to-avoid.html [https://perma.cc/HS2F-LJ2C]. To that end, I use person-first and identity-first language interchangeably (e.g., “parents with disabilities” and “disabled parents”) in recognition of the disability community’s diverse language preferences. See generally Dana S. Dunn & Erin E. Andrews, Person-First and Identity-First Language: Developing Psychologists’ Cultural Competence Using Disability Language, 70 Am. Psych. 255 (2015) (exploring the evolving language preferences among people with disabilities). ↑

  7. See, e.g., @yooitsmo, Twitter (June 24, 2021, 11:58 AM), https://twitter.com/yooitsmo/‌status/1408092248265445387 [https://perma.cc/UX86-TLL3] (“I’m sorry but…Britney HAS to keep an [IUD] in under her conservatorship??? How is any of this legal/okay???”); Meghan McCain (@MeghanMcCain), Twitter (June 23, 2021, 9:14 PM), https://twitter.com/‌MeghanMcCain/‌status/1407869786156146689 [https://perma.cc/T7S7-3X6G] (“This goes beyond any normal courts, there should be human rights violations investigations. Britney Spears was held captive, out in the open and we gawked at her and didn’t listen. This is how we treat famous women. Thank God she didn’t kill herself. There is a rot in our culture”); Congresswoman Katie Porter (@katieporteroc), Twitter (June 24, 2021, 7:25 PM), https://twitter.com/katieporteroc/status/1408204566592561157 [https://perma.cc/‌AA53-C7WG] (“Every American—regardless of their gender identity or disability status—ought to be able to make decisions about their own bodies. #FreeBritney”). ↑

  8. See, e.g., Imani Barbarin (@Imani_Barbarin), Twitter (June 24, 2021, 10:54 AM), https://twitter.com/Imani_Barbarin/status/1408076140028305422 [https://perma.cc/3W8S-DPTB] (“I don’t like the gaslighting that goes on when disabled people tell y’all that what’s happening with #FreeBritney is not at all unique. You just have a hierarchy of disability and a point at which you think someone is “too disabled” to care about.”); Sarah Lerner (@SarahLerner), Twitter (June 23, 2021, 6:42 PM), https://twitter.com/SarahLerner/status/‌1407831499164962817 [https://perma.cc/A8BU-TS75] (“Britney Spears being held under a 13-year conservatorship and being forced to keep her IUD in despite the fact that she wants another child is where disability rights and reproductive rights intertwine.”); Dr. Sherri G. (@onlymeindc), Twitter (June 24, 2021, 9:27 PM), https://twitter.com/onlymeindc/‌status/1408235268545519617 [https://perma.cc/UV6J-LU5J] (“The Britney Spears situation is most definitely a disability rights issue. The medical and social models of disability are clashing right in front of your eyes. One model boils us down to impairment through oppressive paternalism forcing us in the sick role and the other doesn’t.”); Eric Michael Garcia (@EricMGarcia), Twitter (June 23, 2021, 5:55 PM), https://twitter.com/EricMGarcia/‌status/1407819545394434051 [https://perma.cc/8BKP-PMAL] (“As always, it’s important to remember that #FreeBritney is a disability rights issue. If the state can do this to one of the most influential pop stars in my lifetime, think about what it can do to others.”). ↑

  9. See infra Part I (contextualizing the United States’ history of the reproductive oppression of people with disabilities and the ways in which it persists today). ↑

  10. Id. ↑

  11. Zoe Brennan-Krohn & Rebecca McCray, Britney Spears’ Reproductive Freedom Is a Disability Rights Issue, ACLU (June 25, 2021), https://www.aclu.org/news/civil-liberties/britney-spears-reproductive-freedom-is-a-disability-rights-issue/ [https://perma.cc/KZ9E-75WS] (“Spears’ experience is part of a long history of people with disabilities—most often people of color—being robbed of the right to control their reproductive destinies.”); Nat’l LGBTQ Task Force, Queering Reproductive Justice: A Toolkit 5–7 (Zsea Beaumonis, Candace Bond-Theriault, Stacey Long Simmons & Sabrina Rewald eds., 2017), https://www.thetaskforce.org/wp-content/uploads/2017/03/Queering-Reproductive-Justice-A-Toolkit-FINAL.pdf [https://perma.cc/5L88-TMXB]. ↑

  12. Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8

     

    Berkeley Women’s L.J. 122, 123–24 (1993) (“Only a few of the dozens of cases regarding involuntary sterilizations involve the sterilization of males. Therefore, sterilization practice is interwoven with the issue of control of female reproductive rights and, to some extent, of female sexual expression.”). But see In re Guardianship of Kennedy, 845 N.W.2d 707, 708–09 (Iowa 2014) (evaluating an appeal brought by a 21-year-old man with intellectual disabilities challenging the legality of a vasectomy his guardian had arranged for him without obtaining a court order); Renu Barton-Hanson, Sterilization of Men with Intellectual Disabilities: Whose Best Interest Is It Anyway?, 15 Med. L. Int’l 49, 57–58 (2015) (examining recent cases concerning sterilization of men with intellectual disabilities and noting the frequent justification as purportedly promoting sexual freedom). ↑

  13. See Eric M. Jaegers, Note, Modern Judicial Treatment of Procreative Rights of Developmentally Disabled Persons: Equal Rights to Procreation and Sterilization, 31 U. Louisville J. Fam. L. 947, 948, 953–54 (1993) (“The purpose of these laws was to protect and streamline society by preventing reproduction by those deemed socially or mentally inferior.”). ↑

  14. 274 U.S. 200 (1927). ↑

  15. Id. at 205; see also Stephen Jay Gould, Carrie Buck’s Daughter, 2 Const. Comment.

     

    331, 336 (1985) (asserting that Buck was not “feebleminded” but rather institutionalized to hide her rape). ↑

  16. Buck, 274 U.S. at 205; Gould, supra note 14, at 334. ↑

  17. Gould, supra note 14, at 333, 336; Buck, 274 U.S. at 205. ↑

  18. Buck, 274 U.S. at 205–06; Gould, supra note 14, at 331. ↑

  19. Paul A. Lombardo, Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell 104–05 (2008). ↑

  20. Buck, 274 U.S. at 206–08. ↑

  21. Id. at 207. ↑

  22. Fresh Air, The Supreme Court Ruling That Led to 70,000 Forced Sterilizations, NPR (Mar. 17, 2016), https://www.npr.org/sections/health-shots/2016/03/07/469478098/the-supreme-court-ruling-that-led-to-70-000-forced-sterilizations [https://perma.cc/5KYD-Z79X]. ↑

  23. Fifteen years after Buck v. Bell was decided, the Supreme Court struck down an Oklahoma law requiring that people with two or more convictions for felonious offenses be sterilized. Skinner v. Oklahoma, 316 U.S. 535, 536–37, 543 (1942). Although both Skinner and Buck concern involuntary sterilization statutes, Skinner’s analysis took a narrower focus, relating only to the punitive sterilization of criminals, thereby avoiding addressing the forced sterilization of people with disabilities. Id. at 542–43. ↑

  24. Brooke Pietrzak, Marriage Laws and People with Mental Retardation: A Continuing History of Second Class Treatment, 17 Dev. Mental Health L. 1, 34–35 (1997). ↑

  25. Id. at 35. ↑

  26. Robert J. Cynkar, Buck v. Bell: “Felt Necessities” v. Fundamental Values?, 81 Colum. L. Rev. 1418, 1432 (1981). ↑

  27. President’s Comm. on Mental Retardation, OHD 74-21002, Silent Minority 33 (1974). ↑

  28. Pietrzak, supra note 23, at 1–2. Although no known studies have systematically examined marriage laws as they apply to people with disabilities, scholars contend that these statutes continue to exist in some states. Michael E. Waterstone, Disability Constitutional Law, 63 Emory L.J. 527, 548–49 (2014). ↑

  29. See Vanessa Volz, Note, A Matter of Choice: Women with Disabilities, Sterilization, and Reproductive Autonomy in the Twenty-First Century, 27 Women’s Rts. L. Rep. 203, 207–08 (2006). ↑

  30. Mary Moe is a pseudonym; Massachusetts General Law requires that informed consent proceedings for an abortion be kept confidential. Mass. Gen. Laws ch. 112, § 12R (2020). ↑

  31. In re Guardianship of Mary Moe, 960 N.E.2d 350, 352 (Mass. App. Ct. 2012). ↑

  32. Id. at 353 (quoting the family court’s decision). ↑

  33. Id. (quoting the family court’s decision). ↑

  34. Id. at 355. ↑

  35. Daniel F. Gunther & Douglas S. Diekema, Attenuating Growth in Children with Profound Developmental Disability: A New Approach to an Old Dilemma, 160 Archives Pediatrics & Adolescent Med. 1013, 1014 (2006); Marcia H. Rioux & Lora Patton, Beyond Legal Smokescreens: Applying a Human Rights Analysis to Sterilization Jurisprudence, in Critical Perspectives on Human Rights and Disability Law 243, 243–44 (Marcia H. Rioux, Lee Ann Basser & Melinda Jones eds., 2011). ↑

  36. Gunther & Diekema, supra note 34; Rioux & Patton, supra note 34, at 244. ↑

  37. The “Ashley Treatment”, Towards a Better Quality of Life for “Pillow Angels”, at 3, 12 (Mar. 17, 2012), http://pillowangel.org/Ashley%20Treatment.pdf [https://perma.cc/8E3Z-VCEQ] (the document is authored by: “Ashley’s Mom and Dad”). ↑

  38. Id. at 10. ↑

  39. Gunther & Diekema, supra note 34, at 1015. ↑

  40. Rioux & Patton, supra note 34, at 244–45. ↑

  41. Id. at 244. ↑

  42. Amy Burkholder, Report: ‘Pillow Angel’ Surgery Broke Law, CNN (May 8, 2007), http://www.cnn.com/2007/HEALTH/05/08/ashley.ruling/index.html [https://perma.cc/Z8RD-LF78] (“Children’s Hospital, in acknowledging its error, said that beyond implementing changes to ensure that sterilization of disabled children doesn’t happen again without a court order, it will seek court approval for other procedures involved in the controversial growth attenuation therapy.”). ↑

  43. Ed Pilkington & Karen McVeigh, ‘Ashley Treatment’ on the Rise Amid Concerns from Disability Rights Groups, The Guardian (Mar. 15, 2012) http://www.guardian.co.uk/society/‌2012/mar/15/ashley-treatment-rise-amid-concerns/ [https://perma.cc/B5WF-ENKY]. ↑

  44. Samuel R. Bagenstos, Disability and Reproductive Justice, 14 Harv. L. & Pol’y Rev. 273, 289 (2020). ↑

  45. See Justine P. Wu et al., Female Sterilization Is More Common Among Women with Physical and/or Sensory Disabilities than Women Without Disabilities in the United States, 10 Disability & Health J. 400, 403 (2017); William Mosher et al., Contraceptive Use by Disability Status: New National Estimates from the National Survey of Family Growth, 97 Contraception 552, 555 (2018); Henan Li et al., Female Sterilization and Cognitive Disability in the United States, 2011–2015, 132 Obstetrics & Gynecology 559, 561 (2018). ↑

  46. Beverly Horsburgh, Schrödinger’s Cat, Eugenics, and the Compulsory Sterilization of Welfare Mothers: Deconstructing an Old/New Rhetoric and Constructing the Reproductive Right to Natality for Low-Income Women of Color, 17 Cardozo L. Rev. 531, 572 (1996). ↑

  47. Roberta Cepko, Involuntary Sterilization of Mentally Disabled Women, 8 Berkeley Women’s L.J. 122, 126 (1993). ↑

  48. Id. ↑

  49. Mary Ziegler, Reinventing Eugenics: Reproductive Choice and Law Reform After World War II, 14 Cardozo J.L. & Gender 319, 350 (2008). ↑

  50. Robyn M. Powell, Susan L. Parish, Monika Mitra, & Eliana Rosenthal, Role of Family Caregivers Regarding Sexual and Reproductive Health for Women and Girls with Intellectual Disability: A Scoping Review, 64 J. Intell. Disability Rsch. 131, 132 (2020) (citing studies). ↑

  51. Id. at 151 (citing studies). ↑

  52. Monika Mitra, Linda M. Long-Bellil, Suzanne C. Smeltzer & Lisa I. Iezzoni, A Perinatal Health Framework for Women with Physical Disabilities, 8 Disability Health J.

     

    499, 499 (2015) (citing studies)

    ;

    Lesley A. Tarasoff et al., Health of Newborns and Infants Born to Women with Disabilities: A Meta-Analysis, 146 Pediatrics, e20201635, at 2 (2020) (citing studies); Ilhom Akobirshoev, Susan L. Parish, Monika Mitra & Eliana Rosenthal, Birth Outcomes Among US Women with Intellectual and Developmental Disabilities, 10 Disability & Health J.

    406, 409

    tbl. 2

    (2017) (

    comparing maternal and infant outcomes of women with and without intellectual disabilities)

    .

    ↑

  53. Robyn M. Powell, Erin E. Andrews & Kara B. Ayers, Becoming a Disabled Parent: Eliminating Access Barriers to Health Care Before, During, and After Pregnancy, 96 Tul. L. Rev. (forthcoming 2021) (manuscript at 2), https://papers.ssrn.com/sol3/papers.cfm?abstract‌_id=3808017 [https://perma.cc/3JD2-WD5G] (interviewing disabled parents about their experiences accessing health care services). ↑

  54. See generally Nat’l Council on Disability, Rocking the Cradle: Ensuring the Rights of Parents with Disabilities and Their Children 15 (2012) [hereinafter “Rocking the Cradle”], https://www.ncd.gov/sites/default/files/Documents/NCD_Parenting_508_0.pdf [https://perma.cc/UB7C-XMMG] (“The report provides a comprehensive review of the barriers and facilitators people with diverse disabilities—including intellectual and developmental, psychiatric, sensory, and physical disabilities—experience when exercising their fundamental right to create and maintain families, as well as persistent, systemic, and pervasive discrimination against parents with disabilities. The report analyzes how U.S. disability law and policy apply to parents with disabilities in the child welfare and family law systems, and the disparate treatment of parents with disabilities and their children. Examination of the impediments prospective parents with disabilities encounter when accessing assisted reproductive technologies or adopting provides further examples of the need for comprehensive protection of these rights.”). ↑

  55. Id. at 16. ↑

  56. Id. at 265–300 (finding that over two-thirds of state dependency laws list parental disability as grounds for termination of parental rights). ↑

  57. Robyn M. Powell, Family Law, Parents with Disabilities, and the Americans with Disabilities Act, 57 Fam. Ct. Rev. 37, 38 (2019) (“Indeed, parents with disabilities contend with substantial and persistent bias within the family law system, often threatening their custody and visitation rights.”). ↑

  58. Laura Rizzo, Inside Britney Spears’ Custody Battle with Kevin Federline for Kids Sean Preston and Jayden, Life & Style Mag. (June 24, 2021), https://www.lifeandstylemag.com/‌posts/does-britney-spears-have-custody-of-kids-preston-and-jayden/ [https://perma.cc/EQY3-9KZ3] (explaining that Britney Spears had 30% custody at the time and was reportedly seeking 50%). ↑

  59. Rocking the Cradle, supra note 53, at 153–66 (describing the ways prospective parents with disabilities experience discrimination within the foster care and adoption system). ↑

  60. Zakiya Luna & Kristin Luker, Reproductive Justice, 9 Ann. Rev. L. & Soc. Sci. 327, 328 (2013). ↑

  61. Loretta Ross, What is Reproductive Justice?, in Reproductive Justice Briefing Book: A Primer on Reproductive Justice and Social Change 4, https://www.law.berkeley.edu/php-programs/courses/fileDL.php?fID=4051 [https://perma.cc/5SSG-QVSD] (last visited Oct. 1, 2021) [hereinafter “Reproductive Justice Briefing Book

    ”]

    . ↑

  62. Loretta J. Ross & Rickie Solinger, Reproductive Justice: An Introduction 73 (2017). ↑

  63. Id. at 74. ↑

  64.  Joan C. Chrisler, Introduction: A Global Approach to Reproductive Justice—Psychosocial and Legal Aspects and Implications, 20 Wm. & Mary J. Women & L. 1, 4 (2013). ↑

  65. Sarah London, Reproductive Justice: Developing a Lawyering Model, 13 Berkeley J. Afr.-Am. L. & Pol’y 71, 75 (2011). ↑

  66. Reproductive Justice Briefing Book

    ,

    supra note 60, at 4. (“Moving beyond a demand for privacy and respect for individual decision making to include the social supports necessary for our individual decisions to be optimally realized, this framework also includes obligations from our government for protecting women’s human rights. Our options for making choices have to be safe, affordable and accessible, three minimal cornerstones of government support for all individual life decisions.”). ↑

  67. Id. (“Instead of focusing on the means—a divisive debate on abortion and birth control that neglects the real-life experiences of women and girls— the Reproductive Justice analysis focuses on the ends: better lives for women, healthier families, and sustainable communities.”). ↑

  68. Dorothy Roberts, Reproductive Justice, Not Just Rights, Dissent (Fall 2015), https://www.dissentmagazine.org/article/reproductive-justice-not-just-rights [https://perma.cc/C37U-GS88]; see also Luna & Luker, supra note 59, at 343 (“[R]eproductive justice is equally about the right to not have children, the right to have children, the right to parent with dignity, and the means to achieve these rights.”). ↑

  69. Seema Mohapatra, Law in the Time of Zika: Disability Rights and Reproductive Justice Collide, 84 Brook. L. Rev. 325, 343 (2019). ↑

  70. Priscilla A. Ocen, Incapacitating Motherhood, 51 U.C. Davis L. Rev. 2191, 2240 (2018). ↑

  71. Reva B. Siegel, ProChoiceLife: Asking Who Protects Life and How—and Why It Matters in Law and Politics, 93 Ind. L.J. 207, 210 (2018). ↑

  72. Sujatha Jesudason & Julia Epstein, Editorial, The Paradox of Disability in Abortion Debates: Bringing the Pro-Choice and Disability Rights Communities Together, 84 Contraception 541, 542 (2011). ↑

  73. London, supra note 64, at 71–72. ↑

  74. See, e.g., Robyn M. Powell, Confronting Eugenics Means Finally Confronting Its Ableist Roots, 27 Wm. & Mary J. Race, Gender & Soc. Just. 607, 628–31 (2021) (examining the history of eugenics in the United States and calling for a justice-based approach to address the role of ableism in eugenics); Bagenstos, supra note 43, at 279–86; Mary Ziegler, The Disability Politics of Abortion, 2017 Utah L. Rev. 587, 627–30 (2017) (describing ways in which reproductive justice should be used to advocate for programs to support people with disabilities as a mechanism for reducing disability-based abortions); Mohapatra, supra note 68, at 325–27 (2019) (using the Zika virus to highlight the tensions between reproductive rights and disability rights); Dorothy Roberts & Sujatha Jesudason, Movement Intersectionality: The Case of Race, Gender, Disability, and Genetic Technologies, 10 Du Bois Rev. 313, 316–18 (2013) (proposing how organizing based on an intersectional analysis can help facilitate alliances between reproductive justice, racial justice, women’s rights, and disability rights activists to develop strategies to address reproductive genetic technologies); Roberts, supra note 67 (describing the failures of the reproductive rights movement to respond to the needs of marginalized communities, including people with disabilities, and calling for a reproductive justice framework instead). ↑

  75. Bagenstos, supra note 43, at 285 (quoting Dorothy Roberts, Killing the Black Body: Race, Reproduction, and the Meaning of Liberty 6 (1997)). ↑

  76. Sins Invalid, Skin, Tooth, and Bone—The Basis of Movement is Our People: A Disability Justice Primer 59 (2d ed. 2019) (capital letters omitted). ↑

  77. Leah Lakshmi Piepzna-Samarasinha, Care Work: Dreaming Disability Justice 11 (2018). ↑

  78. Sins Invalid, supra note 75, at 22–26 (capital letters omitted). ↑

  79. Id. at 15, 47. ↑

  80. Talila “TL” Lewis, Disability Justice Is an Essential Part of Abolishing Police and Prisons, Level (Oct. 7, 2020), https://level.medium.com/disability-justice-is-an-essential-part-of-abolishing-police-and-prisons-2b4a019b5730 [https://perma.cc/J5QL-9UNR]. ↑

  81. Sins Invalid, supra note 75, at 15. ↑

  82. In 1989, Kimberlé Crenshaw coined the term “intersectionality” to help explain the oppression of African-American women. See Kimberlé Crenshaw, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics, 1 U. Chi. Legal F. 139, 140 (1989). Since then, intersectionality has been used to study how people who are members of multiple socially marginalized communities experience discrimination, including people with disabilities. See, e.g., Beth Ribet, Surfacing Disability Through a Critical Race Theoretical Paradigm, 2 Geo. J.L. & Mod. Critical Race Persps. 209, 211–22 (2010). ↑

  83. Piepzna-Samarasinha, supra note 76, at 11. ↑

  84. Sins Invalid, Reproductive Justice is Disability Justice

    1,

    https://www.sinsinvalid.‌org/s/Reproductive_Justice_is_Disability_Justice.pdf [https://perma.cc/6XUF-Z8JL] (last visited June 26, 2021). ↑

  85. Alice Abrokwa, “When They Enter, We All Enter”: Opening the Door to Intersectional Discrimination Claims Based on Race and Disability, 24 Mich. J. Race & L.

     

    15, 20–21 (2018). ↑

  86. Ruth Wilson Gilmore, Foreword to Dan Berger, The Struggle Within: Prisons, Political Prisoners, and Mass Movements in the United States viii (2014). ↑

  87. Emily A. Benfer, Health Justice: A Framework (and Call to Action) for the Elimination of Health Inequity and Social Injustice, 65 Am. U. L. Rev. 275, 338 (2015) (describing the importance of actively engaging socially marginalized communities to address inequities). ↑

  88. Sins Invalid,

     

    supra note 75, at 23. ↑

  89. James I. Charlton, Nothing About Us Without Us: Disability Oppression and Empowerment 3 (1998). ↑

  90. Bagenstos, supra note 43, at 280–81. ↑

  91. Center for Reproductive Rights, Shifting the Frame on Disability Rights for the U.S. Reproductive Rights Movement 2 (2017), https://reproductiverights.org/wp-content/uploads/‌2020/12/Disability-Briefing-Paper-FINAL.pdf [https://perma.cc/52GS-T2NV]. ↑

  92. See id. at 1–2. ↑

  93. See Pamela S. Karlan & Daniel R. Ortiz, In a Diffident Voice: Relational Feminism, Abortion Rights, and the Feminist Legal Agenda, 87 Nw. U. L. Rev.

     

    858, 876 (1993) (“The language of autonomy has provided the central rationale for protecting individual women’s control over the abortion decision.”). ↑

  94. Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (“Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding [in Roe v. Wade] that the Constitution protects a woman’s right to terminate her pregnancy in its early stages . . . that definition of liberty is still questioned. Joining the respondents as amicus curiae, the United States, as it has done in five other cases in the last decade, again asks us to overrule Roe.”). ↑

  95. Id. at 851. ↑

  96. Samuel R. Bagenstos & Margo Schlanger, Hedonic Damages, Hedonic Adaptation, and Disability, 60 Vand. L. Rev. 745, 795 (2007) (“[P]aternalism has historically been one of the most significant contributors to the disadvantage people with disabilities experience. Non-disabled parents, teachers, doctors, rehabilitation counselors, employers, and others have arrogated to themselves the prerogative to decide what is best for people with disabilities. In so doing, they have deprived people with disabilities of opportunities to work and participate in the community. They have denied people with disabilities the autonomy that consists in making one’s own choices. And they have denied people with disabilities the dignity of risk— the opportunity to develop their skills, test them in the world, and succeed or fail according to their talents.” (internal quotation marks omitted)). ↑

  97. Charlton

    ,

    supra note 88, at 3 (“Control has universal appeal for [disability rights movement] activists because the needs of people with disabilities and the potential for meeting these needs are everywhere conditioned by a dependency born of powerlessness, poverty, degradation, and institutionalization. This dependency, saturated with paternalism, begins with the onset of disability and continues until death.”) ↑

  98. Candida Moss, The Romans, the Supreme Court, and Britney Spears—Conservatorship Abuse Has Been Happening for 2000 Years, The Daily Beast (June 26, 2021), https://www.thedailybeast.com/britney-spears-the-romans-and-the-supreme-court-conservatorship-abuse-has-been-happening-for-2000-years [https://perma.cc/7UJL-389G] (tracing the history of guardianship to Roman law). ↑

  99. Ctr. for Pub. Representation, Statement from Disability Justice and Supported Decision-Making Advocates: Britney Spears Spotlights the Need for Change Now (June 25, 2021), https://supporteddecisions.org/2021/06/25/britney-spears/ [https://perma.cc/SKK5-2HKH]. ↑

  100. Sara Luterman, For Women Under Conservatorship, Forced Birth Control Is Routine, The Nation

     

    (July 15, 2021), https://www.thenation.com/article/society/conservatorship-iud-britney-spears/ [https://perma.cc/Q9WD-SSCC]. ↑

  101. Nat’l Council on Disability, Beyond Guardianship: Toward Alternatives that Promote Greater Self-Determination 17 (2018), https://ncd.gov/sites/default/files/NCD_Guardianship_‌Report_Accessible.pdf [https://perma.cc/D8WG-5HBX]. ↑

  102. Nina A. Kohn, Jeremy A. Blumenthal & Amy T. Campbell, Supported Decision-Making: A Viable Alternative to Guardianship?, 117 Pa. St. L. Rev. 1111, 1117 (2013). ↑

  103. Ctr. for Pub. Representation, U.S. Supported Decision-Making Laws, https://supported‌decisions.org/resources-on-sdm/state-supported-decision-making-laws-and-court-decisions/ [https://perma.cc/L58P-TTEY] (last visited Sept. 2, 2021) (listing states that have implemented supported decision-making). ↑

  104. Ctr. for Pub. Representation, About Supported Decision-Making, https://supported‌decisions.org/about-supported-decision-making/ [https://perma.cc/KG45-F327] (last visited June 25, 2021). ↑

  105. Ctr. for Pub. Representation, supra note 98. ↑

  106. Nat’l Council on Disability, Turning Rights into Reality: How Guardianship and Alternatives Impact the Autonomy of People with Intellectual and Developmental Disabilities

    29–36 (2019),

    https://ncd.gov/sites/default/files/NCD_Turning-Rights-into-Reality_508_0.‌pdf [https://perma.cc/H2PR-X7Y7].

     

    ↑

  107. See supra Section II.B. ↑

  108. Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101–12213. ↑

  109. Rehabilitation Act of 1973, 29 U.S.C. §§ 701–796. ↑

  110. Patient Protection and Affordable Care Act, 42 U.S.C. § 18116(a); 45 C.F.R §§ 92.102–105. ↑

  111. Powell, supra note 73, at 625–27 (describing federal disability laws’ application to matters concerning reproductive justice). ↑

  112. Robyn M. Powell & Michael Ashley Stein, Persons with Disabilities and Their Sexual, Reproductive, and Parenting Rights: An International and Comparative Analysis, 11 Frontiers L. China 53, 57–58 (2016) (explaining the implications of disabled people not receiving sexuality education). ↑

  113. See Hyde Amendment Codification Act, S. 142, 113th Cong. (2013) (originally passed in 1977); Alina Salganicoff, Laurie Sobel & Amrutha Ramaswamy, The Hyde Amendment and Coverage for Abortion Services, Kaiser Fam. Found. (Mar. 5, 2021), https://www.kff.org/womens-health-policy/issue-brief/the-hyde-amendment-and-coverage-for-abortion-services/ [https://perma.cc/NT7W-QL6W]. ↑

  114. Rocking the Cradle, supra note 53, at 178 (noting that “Medicaid and Medicare [are] the primary health insurers for people with disabilities”). ↑

  115. Nora Ellen Groce et al., HIV Issues and People with Disabilities: A Review and Agenda for Research, 77 Soc. Sci. & Med. 31–37 (2013) (analyzing research about the intersection of HIV/AIDS and people with disabilities and calling for greater attention to the topic). ↑

  116. Amy Swango-Wilson, Meaningful Sex Education Programs for Individuals with Intellectual/Developmental Disabilities, 29 Sexuality & Disability 113–16 (2011). ↑

  117. See generally Benfer, supra note 86 (explaining the social determinants of health and the health justice framework). ↑

  118. Soc. Sec. Admin., SSI Federal Payment Amounts for 2021, https://www.ssa.gov/oact/‌cola/SSI.html [https://perma.cc/DW5R-6MY3] (last visited July 20, 2021). ↑

  119. Soc. Sec. Admin., Substantial Gainful Activity, https://www.ssa.‌gov/oact/cola/sga.html [https://perma.cc/9YWP-XS5G] (last visited September 2, 2021). ↑

  120. Rocking the Cradle, supra note 53, at 202 (“[T]he most significant difference between parents with disabilities and parents without disabilities is economic . . . .”). ↑

  121. While marriage is certainly not required to form families, it should be available to people with disabilities the same as it is for nondisabled people. However, strict asset programs prevent disabled people from marrying. See Waterstone, supra note 27, at 549 n. 132. ↑

  122. U.S. Census Bureau, Selected Economic Characteristics for the Civilian Noninstitutionalized Population by Disability Status, https://data.census.gov/‌cedsci/table?t=Disability&tid=ACSST1Y2019.S1811&hidePreview=true&vintage=2018 [https://perma.cc/6JFJ-DATH] (last visited July 11, 2021). ↑

  123. See Section I.B supra (noting that disabled parents have disproportionate rates of child welfare system involvement and termination of parental rights). ↑

  124. ‘Abolition Is the Only Answer’: A Conversation with Dorothy Roberts, Rise Mag. (Oct. 20, 2020), https://www.risemagazine.org/2020/10/conversation-with-dorothy-roberts/ [https://perma.cc/9DMC-DQBL] (“Policing captures what this system does. It polices families with the threat of taking children away. Even when its agents don’t remove children, they can take children and that threat is how they impose their power and terror. It is a form of punishment, harm and oppression.” (quoting Dorothy Roberts) (emphasis in original)). ↑

  125. See generally Robyn M. Powell, Achieving Justice for Disabled Parents and Their Children: An Abolitionist Approach, 33 Yale J.L. & Feminism (forthcoming 2022) (on file with author) (arguing that child welfare system abolition is necessary to protect disabled parents and their children). ↑

  126. Rocking the Cradle, supra note 53, at 16. ↑

©Virginia Law Review Association. All rights reserved.