Remembering Deborah Rhode: Co-Author, Friend, and Feminist Co-Conspirator

Posted in: Civil Rights

The legal academy lost one of its finest scholars and teachers when Professor Deborah Rhode of Stanford Law School died on January 8, 2020, at the age of 68. She was only the second woman to join the faculty there, a position she held for 41 years.

Professor Rhode was one of the nation’s leaders in the law of sex discrimination, as well as in legal ethics and the legal profession. It would be hard to think of a gender law scholar whose work was both so widely cited and so broad in scope. Among the many subjects she tackled were bias in the legal profession, the history of the legal profession, glass ceiling issues, structural and unconscious bias, sexual harassment, pregnancy discrimination, women in leadership, bias in courtrooms, gender discrimination in education, and appearance discrimination. And in recent years, she had grappled with broader questions about people and society in which we live, writing books about leadership, adultery, character, cheating, and ambition.

For Professor Rhode, the fight for gender equity was a life-long pursuit. As she described during an oral history interview, she watched her mother struggle to return to education and the workforce after years at home caring for children. She saw firsthand the impact of societal attitudes that pressured women to marry young and stay home with children—and then sidelined them for those choices. She vowed to be an independent woman who would never have to ask a man for an allowance, as she had seen her mother do. She was also passionate about addressing poverty and other social justice issues. As she pursued her undergraduate education, as a student in Yale University’s first coeducational class, she began to focus on gender equity after being encouraged by a professor to read Simone De Beauvoir’s The Second Sex in 1970. The rest, as they say, is history.

While it would be impossible to reduce Professor Rhode’s scholarship to a few themes, one of the insights she brought to bear in much of her theory and practice was what she coined “the ‘no-problem’ problem.” (Although she first used this phrase much earlier, she elaborates on the meaning in this piece.) The basic insight was this: people assume that because women have made such great strides in education and employment, progress will continue until full gender equity is achieved. Rhode’s scholarship in a number of areas throws this assumption into question, demonstrating that cognitive and structural barriers to gender equity continue to exist across the various domains of women’s lives and will not disappear without concrete interventions. Equality is possible but not inevitable. The beliefs that the necessary laws are in place and that gender equity is simply a matter of following through on unfinished business, Rhode notes, are not only inaccurate, but constitute barriers themselves to a more robust version of gender justice. Thinking that gender is no longer a problem is, in some important sense, the problem.

A true leader, Professor Rhode put herself in positions to put her scholarship in practice, including her understanding of the no-problem problem. For example, she was President of the American Association of Law Schools in 1998, and Chair of the American Bar Association’s Commission on Women in the Profession from 2000 to 2002. She had a leadership role in three different ABA undertakings—The Unfinished Agenda, Balanced Lives for Lawyers, and Sex-Based Harassment—each a major report designed to identify and remove the many persistent structural and attitudinal barriers to gender equity. These reports provide a blueprint for tackling other issues of gender inequity. Rhode believed in the importance of first gathering empirical data to document the existence of bias, disparities, or other evidence of inequity. She also understood the value of being able to analyze and describe the problem in terms that could be easily communicated and understood. And she never wavered in her commitment to the belief that women should be in all the places where decisions are made (as the popular Ruth Bader Ginsburg saying goes) and have the same opportunities to capitalize on their natural talents and abilities as men have.

Over the course of several books, including Justice and Gender (1991) and Speaking of Sex: The Denial of Gender Inequality (1999), Professor Rhode engaged in the project of chronicling the ways in which gender affected every single aspect of a woman’s life—and every institution of civil society. She explored the complicated interplay between law and cultural perceptions of gender, as well as the challenges of using law as a tool for radical social change. These books, among others she wrote, were her response to the “no problem” way of thinking about gender. The persistence of gender inequity was undeniable—and unacceptable.

At a later point in her career, Professor Rhode became passionate about the insidious effects of appearance discrimination for women. In a book that reached a much wider audience than many written by law professors, The Beauty Bias (2010), she explores a variety of features of everyday life that hide serious inequalities for women. High heels, for example, reflect the very different standards for dress imposed on men and women, the unstated requirement that even professional women be feminized, and the burdens that women suffer for the sake of satisfying society’s exacting standards for them. In this book, she extensively documents the ways in which appearance bias seeps into a wide variety of practices and decisions, as well as the way it shapes women’s behavior. She then articulates a theory to justify attempts to eradicate the beauty bias—an application of the theories she had elaborated in gender law more generally. She was offended by practices and rules that impaired equal opportunity, judged people based on irrelevant characteristics rather than their ability and effort, and exacerbated disadvantages based on immutable characteristics. But she also worried that overregulation could chill individuality and free expression. She tried to find the line that was most protective of individual choice, advocating for an approach that would best allow women to express their true, authentic selves, whether that involved stilettoes and makeup or not.

Although her scholarship spanned a wide range of topics, it was never short on depth and detail. Professor Rhode was a master at engaging the micro and the macro simultaneously, taking a deep dive into a particular area of gender inequality and making connections to larger themes and theories. For example, in a case study on women coaches, Professor Rhode and her coauthor (a former student – reflective of her collaborative spirit) showed how an entire segment of the workforce has been left out of progress toward equality, teasing out the ways institutional sexism is resistant to antidiscrimination law. They went beyond secondary sources to directly survey women coaches, exposing the confluence of subtle and blatant biases that kept them locked out of advancement and higher pay. Many of these factors are similar to those she has identified as inhibiting women’s progress in the legal profession and other historically male domains. These include exclusionary recruiting networks; insufficient mentoring; lack of role models; sexist double-standards; anti-lesbian bias and suspicion toward strong, confident, competitive women; inadequate institutional support; unconscious bias; and inflexible work structures. Like so much of Professor Rhode’s work, she was not content to leave an incisive account of inequality with no hope or relief and concluded the case study with a robust set of prescriptions for law and policy to press for greater progress.

Another example of scholarship that uses a specific, concrete area of the law to illuminate broader themes about the institutionalized aspects of inequality is Professor Rhode’s work on sexual assault. One of her many articles on this topic began with the observation that the United States has the world’s second-highest rate of reported rape. Professor Rhode went on to compare sexual assault on college campuses with sexual assault in the military. The comparison generated many productive insights about how sexual assault takes root in institutions, and why it is so impervious to legal solutions. Professor Rhode showed how both settings involve common institutional dynamics: a mismatch between the cultural prototype of a rapist and the reality of rape; a deeply ingrained ethos of institutional loyalty and insularity; an institutional culture rife with sexual double standards, victim-blaming, and skepticism of accusers; and low accountability for perpetrators and the high-status persons within institutions that enable and protect them. The work is at once a detailed accounting of the problem of sexual assault in each of these specific settings, and a significant contribution to a macro-level understanding of why and how sexual assault functions as an instrument of gender inequality. As with so much of her work, ever hopeful of a better future, Professor Rhode connects her insights to policy recommendations and proposals for change.

Finally, we reflect, with fondness and gratitude, on Professor Rhode’s qualities as a collaborator and mentor. We were each co-authors with Professor Rhode on the gender law casebook Gender and Law: Theory, Doctrine, Commentary, now in its eighth edition, and its undergraduate companion, Gender Law and Policy. Professor Rhode brought to this venture a hard-driving work ethic, which sometimes made it tough to keep up with her. She was constantly finding new material for the book, never easing up on starting on the next edition from the moment the last one was out. She was unfailingly supportive and collaborative in the best sense as a coauthor, always open to other perspectives and to compromise. She approached our work as an opportunity for growth, not a platform for her own agenda. The words she most often used to describe collaborative projects were “great fun.”

What also stands out is the exceptional generosity she exhibited toward others, especially to junior women colleagues. This generosity was vividly conveyed this past weekend when the news of her death went out across the women’s law prof listserv. Dozens of emails crossed, with vivid remembrances of how Professor Rhode had mentored and befriended so many students and women faculty.

Luminary that she was, she somehow always found the time and energy to extend herself on behalf of others. Immersed as she was in deep ideas, Professor Rhode could be the quintessential absent-minded professor, working toward a better future for us all, but forgetting how to record a zoom session or plug in her computer.

Few scholars in the academy today have meant so much to so many. Professor Rhode died at the height of her career. She had so much more to do. But in her legacy as a scholar, and the example she set in not taking women’s progress for granted, Rhode left future generations important tools for carrying forward the mission of women’s equality.

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