Joanna L. Grossman

Joanna L. Grossman

Joanna L. Grossman is the Ellen K. Solender Endowed Chair in Women and Law at SMU Dedman School of Law.  She is an expert in sex discrimination law. Her most recent book, Nine to Five: How Gender, Sex, and Sexuality Continue to Define the American Workplace (Cambridge University Press 2016), is a lively and accessible introduction to the laws, policies, and practices that shape women’s lives at work. She also writes extensively on family law, especially on state regulation of marriage and parentage. She chronicles contemporary developments in parentage law in her blog, Are You My Mother?. She is also an author of Inside the Castle: Law and the Family in 20th Century America (Princeton University Press 2011), a comprehensive social history of family law. She is the co-author of Gender & Law: Theory Doctrine & Commentary (6th ed. 2013); the co-editor of Gender Equality: Dimensions of Women’s Equal Citizenship (Cambridge University Press 2009); and the co-editor of Family Law in New York (Carolina Academic Press 2015).

Columns by Joanna L. Grossman

Flag-Waving Gametes: Biology, Not Gestation or Parenting, Determines Whether Children Born Abroad Acquire Citizenship from U.S. Citizen Parents

Justia columnist and Hofstra law professor Joanna Grossman discusses the important questions of whether and when a child who is born outside the U.S. can acquire citizenship from a U.S. citizen parent. Grossman focuses especially on the heartbreaking case of U.S. citizen Ellie Lavi, who gave birth to twins in Israel. When Lavi sought U.S. citizenship for the twins, the State Department informed her that the twins would not be deemed U.S. citizens unless Lavi could prove that the donor sperm or egg came from a U.S. citizen. Grossman strongly criticizes the State Department’s decision to, in effect, deem the gamete donors, not Lavi, the babies’ parents for purposes of U.S. citizenship—even though no one disputes that Lavi, a U.S. citizen, gave birth to the twins. Grossman covers the ways in which children can gain U.S. citizenship by descent; describes the more onerous rules for out-of-wedlock children; considers whether treating unwed citizen fathers and unwed citizen mothers differently is discriminatory; and discusses who counts as a “mother” and thus a person able to convey citizenship. Finally, Grossman considers four interesting scenarios regarding the descent of citizenship to children; describes the consequences of non-citizenship; and urges the State Department to deal more fairly and justly with the modern realities of reproductive technology.

The Controversy Over Public Breastfeeding: Breast May Be Best, but Objectors Say Not in My Backyard (or Airplane)

Justia columnist and Hofstra law professor Joanna Grossman comments on the law regarding public breastfeeding. She covers both of the potentially applicable types of laws: indecent exposure laws, and public accommodations laws. In addition, Grossman discusses a key New York decision regarding toplessness more generally; a decision based on a Wal-Mart employee’s telling a customer that she needed to either breastfeed her son in the bathroom, or leave the store; a decision based on a mother’s refusal to put a blanket over her baby’s head when she was breastfeeding on a Delta airplane, as it was waiting at the gate; and a Vermont law that establishes the right, in that state, to publicly breastfeed. In addition, Grossman notes the changing social mores regarding breastfeeding—illustrated by protests called “nurse-ins” that are often sparked, with the help of social media, when a woman’s attempt to breastfeed in public is shut down.

Is the Defense of Marriage Act (DOMA) Indefensible? A Federal Court Says Yes, in Golinski v. OPM

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent decision by the U.S. District Court for the Northern District of California, holding that the Defense of Marriage Act (DOMA) is unconstitutional. (As readers may know, DOMA defines a marriage as a union between a man and a woman, for purposes of federal law and federal benefits.) The court also held that statutory classifications based on sexual orientation should trigger heightened scrutiny from reviewing courts, and that an anti-same-sex marriage law cannot survive such scrutiny. Grossman provides background on DOMA, and describes the current impact of, and court challenges to, DOMA’s anti-same-sex marriage section. She also describes federal legislative and executive challenges to DOMA, and recaps California’s complicated history regarding same-sex marriage. In addition, she focuses on the interesting question of what level of heightened scrutiny (intermediate, strict, or other) courts will apply when reviewing cases alleging sexual-orientation discrimination. Grossman predicts that whether by repeal, administrative undercut, or judicial invalidation, DOMA is on its way out.

A Federal Judge Thwarts Title VII and the Pregnancy Discrimination Act by Ruling Bizarrely That Lactation Is Not Related to Pregnancy

Justia columnist and Hofstra law professor Joanna Grossman comments on a recent case that was brought by a woman who alleged that she was fired because, after giving birth, she asked if she could pump breast milk in a back room at her workplace. The judge held that she did not have a right to do so, under either Title VII, which prohibits discrimination based on gender, or the Pregnancy Discrimination Act. Grossman takes strong issue with the ruling, which reasoned oddly that lactation and pregnancy are somehow unrelated. Grossman notes that the lactation-discrimination conflict is part of a long-running war—involving employers, employees, insurance companies, state governments, and the federal government—about whether women, alone, should bear all the consequences, costs and hardships of reproduction, or whether their employers and/or others must play a part. In addition to the lactation-discrimination case, Grossman also covers prior cases involving contraceptive equity and infertility discrimination, as well as discussing the legal protections that woman can turn to when the reproductive process conflicts with work, and the role the EEOC has played in this area of law.

The Beginning of the End of the Anti-Same-Sex-Marriage Movement

Justia columnist and Hofstra law professor Joanna Grossman comments on the situation in Washington State, which is now poised to legalize same-sex marriage. Grossman contends that the Washington State situation is significant not only because Washington State will now become the seventh state to legalize same-sex marriage, but also because—for the first time since the beginning of the same-sex marriage controversy—a state legislature will move from a statutory ban on same-sex marriage, to a statutory authorization of it. Grossman covers Washington State’s path through many different stages of the same-sex marriage controversy; the details of the bill passed by the Washington State senate; and the potential implications of the State of Washington’s experience for the same-sex marriage movement more generally.

Men Who Give It Away: The Potential Perils of Free and Non-Anonymous Sperm Donation

Justia columnist and Hofstra law professor Joanna Grossman comments on the legal consequences of different forms of free, non-anonymous sperm donation. As she explains, some of these donations are connected to the online Free Sperm Donor Registry. Grossman, relying in part on previous reportage by 20/20, comments on situations such as that of a man who has given away so much sperm that the government has told him to stop its “manufacture,” and men who donate sperm via what is called “natural insemination”—that is, sex. Grossman explains why in-person sperm donation, especially via “natural insemination” raises complex questions about the legal rights and obligations of the sperm donor—with donors potentially liable for child support, and potentially able to seek visitation or even co-parent status. She also notes that in-person sperm donation may be governed by—and may, in some instances, violate—FDA regulations pertaining to the donation of human cells and tissue. Among other legal sources, Grossman covers the original and revised Uniform Parentage Act (UPA) in the column.

The Complications of Surrogacy: A New Jersey Court Refuses to Uphold a Surrogacy Arrangement, but Awards Full Custody to the Intended Father

Justia columnist and Hofstra law professor Joanna Grossman comments on a New Jersey decision regarding surrogacy. Grossman explains why the surrogacy agreement at issue was ruled to be unenforceable by the New Jersey court; how a custody dispute arose after the two babies that the surrogate had carried were born; the factors that were legally relevant to that dispute; and the reasons why the court, in the end, awarded sole custody to the babies’ biological father. As Grossman notes, the case is of interest not only as a significant precedent regarding the increasingly common practice of surrogacy, but also due to its unusual facts, which pitted a gay couple against a woman who believes homosexuality is sinful.

Everything I Need to Know About Family Law I Learned from Teen Mom: Part Two in a Two-Part Series

In this two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman draws on an unusual source, the reality television show Teen Mom, to illuminate a number of family law issues. Here, in Part Two, Grossman covers issues that have arisen on Teen Mom relating to legal fatherhood, parental rights, child custody, domestic violence, and open adoption. Using the situations of the young women on Teen Mom as examples, Grossman answers interesting family law questions like these: Does legal fatherhood matter? How are disagreements over custody and visitation resolved, and what kind of disagreements are likely to arise? How and why might custody over a child be relinquished? Do grandparents have visitation rights, and in what circumstances? How does open adoption work, and what problems might occur with open adoption? Finally, what happens when there is family violence? By illustrating instances where these questions arise, Grossman notes, Teen Mom ends up being surprisingly educational for a reality television series.

Everything I Need to Know About Family Law I Learned From Teen Mom: Part One in a Two-Part Series of Columns

In this two-part series of columns, Justia columnist and Hofstra law professor Joanna Grossman draws on an unusual source, the reality television show Teen Mom, to illuminate a number of family law issues. Here, in Part One, Grossman begins by contrasting the precursor show, 16 and Pregnant, which raised few legal issues, with Teen Mom, which raises a plethora of them. She explains why teen pregnancy raises few legal issues, whereas the birth of a child to a teenage mother often, as Teen Mom illustrates, triggers legal conflicts. Specifically, Grossman covers abortion rights for minors and the very limited rights of putative unwed fathers, prior to birth. She also quickly previews the nature of the many post-childbirth legal disputes that she will discuss in Part Two of the series.

Can Laypersons Ordained Online as Universal Life Church Ministers, or the Like, Officiate at Weddings? In Some States, the Answer Is No

In the second of a two-part series of columns raising questions about the legal effect of online ordination, Justia columnist and Hofstra law professor Joanna Grossman discusses whether persons who are ordained only by an online ministry, with no prerequisites for ordination but the payment of a fee, can legally perform marriages. Such online ministries include the Pastafarians (who belong to the Church of the Flying Spaghetti Monster), the Church of Body Modification, the Universal Life Church, and others. Grossman points out that in some states, such ordinations mean nothing, and thus, marriages performed by such “ministers” will not be valid. She focuses, especially, on New York, where the validity of such marriages is especially doubtful.

The Penn State Scandal: Why Is No One Talking about Title IX? Part Two in a Two-Part Series of Columns

In the second in a two-part series of columns on the Penn State alleged child sex abuse and failure-to-report scandal, Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and U. Pittsburgh law professor Deborah Brake continue their commentary on a new and interesting legal aspect of the scandal. They argue that in addition to raising issues of criminal liability and civil tort liability, the alleged Penn State child abuse and the failure to report it may also raise issues under Title IX—the 1972 federal statute that prohibits recipients of federal funds from discriminating on the basis of sex in their educational programs and activities. Here, in Part Two of the series, Grossman and Brake discuss particular issues that may arise if a Title IX claim is brought: Does it make a difference if a given boy was abused only once, for liability purposes? Did the alleged Penn State abuse occur under “any education program or activity” as the statute requires? Does Title IX apply to the alleged harassment by Jerry Sandusky of these particular boys, who (obviously) were not Penn State students? In answering these questions, Grossman and Brake explain why, at the very minimum, the alleged sexual assaults that took place in the showers of the Penn State locker room or its sauna would, at least, fall within Title IX’s reach. In addition, they explain the legal issues regarding Penn State’s potential liability for the abuse, and look to the Grand Jury’s report to see if actual notice and deliberate indifference can be proven, as Title IX requires. Finally, Grossman and Brake note that, for several reasons, there are likely to be no statute-of-limitations issues here, despite the passage of time.

The Penn State Scandal: Why Is No One Talking About Title IX? Part One in a Two-Part Series of Columns

In the first in a two-part series of columns on the Penn State alleged child sex abuse and failure-to-report scandal, Justia columnist and Hofstra law professor Joanna Grossman, and Justia guest columnist and U. Pittsburgh law professor Deborah Brake comment on a new and interesting legal aspect of the scandal. They argue that in addition to raising issues of criminal liability and civil tort liability, the alleged Penn State child abuse and the failure to report it may also raise issues under Title IX—the 1972 federal statute that prohibits recipients of federal funds from discriminating on the basis of sex in their educational programs and activities. Grossman and Brake note that Title IX has been used in the past to address sexual harassment by teachers and coaches, and by third parties, and that such harassment can encompass sexual assault and rape. Title IX, they note, also reaches same-sex harassment. Based on the grand jury presentment, Grossman and Brake detail the allegations at issue. Based on Supreme Court precedent, they explain why the alleged conduct at issue could fit within the parameters of Title IX.

The Reasons Why Herman Cain Has Not Been Able to Talk His Way Out of His Exploding Sexual Harassment Scandal

Justia columnist and Hofstra law professor Joanna Grossman comments on the Herman Cain sexual harassment scandal from a legal, rather than political, point of view—based on what is known so far, and on Cain’s own comments regarding sexual harassment. Grossman recalls Cain’s negative remarks about the Civil Rights Act of 1991, which strengthened discrimination law, and she explains in detail how discrimination law, and sexual harassment law in particular, have improved the situation of women in the ensuing years. She also takes issue with Cain’s suggestion that speaking to someone cannot be sexual harassment—pointing out that if the words that are spoken connect job benefits with sexual favor, speaking them is the very epitome of sexual harassment. In addition, Grossman notes that harassment by someone who is the head of a company, as Cain has been, triggers different and harsher rules and heightens the risk to the company. Finally, Grossman questions Cain’s claims that he was adept at line-drawing in this difficult legal area, and may only have had a problem with “over-complimenting” women. She notes, too, that the law sees things not from the point of view of the alleged harasser, but of the victim and of a reasonable person in the victim’s place. Worst of all, Grossman, argues, is Cain’s contention that the claims against him were fabricated; fabrications, she points out, are extremely rare in this area of law, making the multiple claims against Cain especially damning.

Can Universal Life Church Ministers Officiate at Weddings? In Some States, the Answer Is No Part One in a Two-Part Series of Columns

In this column, the first in a two-part series, Justia columnist and Hofstra law professor Joanna Grossman discusses the law regarding marriage, and, in particular, the question whether couples whose marriage is performed by a friend who has been ordained for the event by an online ministry, but who has no congregation or other trappings of religious power, have entered into a valid marriage. She notes that in New York, for example, and certain other states, the answer may, in some cases, be no. As part of Grossman’s investigation of the issue, she became a minister of the Universal Life Church (ULC) herself, in order to learn what was required. She also discusses key Mississippi and Virginia cases regarding ULC marriages. In Part Two of this series—appearing on this site in two weeks, on November 15—Grossman will provide a detailed jurisdiction-by-jurisdiction analysis of cases in which the validity of online-minister marriages have been challenged.

The Potential Consequences of Adult Adoption for Inheritance: A Recent Virginia Supreme Court Ruling

Justia columnist and Hofstra law professor Joanna Grossman comments on how adult adoption—that is, a person’s being adopted by another when that person is already an adult—affects that person’s ability to inherit from his or her original and new relatives, respectively. Grossman focuses in particular on a recent Virginia Supreme Court case in which an adult woman’s being adopted at the age of 53 meant that her niece and nephews were no longer the legal heirs of the woman’s biological sister, who had previously been their aunt. She also explains why adult adoption is typically easy: Unlike the adoption of a child, it comes with no support or other obligations so there is little, if any, court scrutiny. In addition, Grossman explains how adult adoption has been sought by members of gay couples seeking to establish a legal relationship with each other in states where gay marriage is not recognized, with mixed results: New York will not allow such adoptions, but Delaware and other states will. Grossman also describes the trusts-and-estates consequences of adult adoption, in the Virginia case and in other scenarios, and the historic development of the practice. And she reminds potential adult adoptees that while an adoption may open up new inheritance rights, it also may foreclose old ones, with the prior biological family, for the establishment of the new, adoptive family relationship typically means that the old, biological one no longer exists.

Towels Under Tailbones? Naked San Franciscans Protest Proposed Restrictions on Public Nudity

Justia columnist and Hofstra law professor Joanna L. Grossman, and Justia guest columnist and Stanford law professor Lawrence M. Friedman comment on American law regarding public nudity, in the wake of a new proposed ordinance on this topic. The ordinance—put forward by Scott Wiener, the new city supervisor for San Francisco’s Castro District—would forbid naked people from entering restaurants. It would also require naked people to put down a towel or other barrier before sitting down in public—for example, while riding a city bus. In addition to discussing the proposed San Francisco ordinance, Grossman and Friedman discuss current California state law on nudity, which covers indecent exposure only if it is lewd (with additional rules applying to restaurants and “adult” establishments). They also cover the Berkeley, California, regulation on nudity that was prompted by the repeated nudity of a man nicknamed “The Naked Guy,” and consider nudism in history.

A Growing Debate Over the Rights of Posthumously Conceived Children: Part Two in a Two-Part Series of Columns

In this column, Justia columnist and Hofstra law professor Joanna Grossman winds up her two-part series on the rights of posthumously conceived children. (Such children are born after their father has passed away, and their mother has used his previously preserved sperm to become pregnant.) With both inheritances and Social Security benefits at issue, there are potentially high stakes in this area of law. In this column, Grossman covers the different answers that various state and federal courts have given to the question whether posthumously conceived children have the same rights to inherit from their fathers, and to receive Social Security “surviving child” benefits as a result of their fathers’ deaths, that other children have. Grossman also notes that not just a number of courts, but also twelve state legislatures, have addressed this issue, and explains the conclusions they have reached.

A Growing Debate Over the Rights of Posthumously Conceived Children: Part One in a Two-Part Series of Columns

Justia columnist and Hofstra law professor Joanna Grossman discusses a decision from the U.S. Court of Appeals for the Eighth Circuit, which raises a fascinating question stemming from modern reproductive technology: Is a child deemed to be legally related to her biological father if she was conceived after he died? The question proves to be crucial when it comes to Social Security and inheritance benefits. Grossman sets forth the facts of the Eighth Circuit case, which involved Social Security benefits; covers some new complications in the law of parentage; and explains why the Eighth Circuit, in the case before it, ultimately ruled against the child and her mother.

Do Lesbian Co-Parents Have Rights? A Recent Ohio Ruling Offers an Unusual Answer

Justia columnist and Hofstra law professor Joanna Grossman discusses the evolving law on the rights of a lesbian co-parent—that is, a woman who participates in the planned conception, birth, and/or rearing of her same-sex partner’s biological or adopted child. Grossman focuses, in particular, on a recent Ohio Supreme Court case that took a somewhat unusual approach to defining the rights of lesbian co-parents. In addition, she describes other states’ varying approaches to the issue, and raises the question whether—in lieu of the traditional legal dichotomy between parent and non-parent—there may be some middle ground into which the legal status of a lesbian co-parent may fall.

“Respect” or “Defend” Marriage? The Senate Considers a Bill to Repeal the Defense of Marriage Act of 1996 (DOMA): Part Two in a Two-Part Series of Columns

Justia columnist and Hofstra law professor Joanna Grossman continues her two-part series of columns critiquing the Defense of Marriage Act (DOMA)—which was recently the subject of Senate Judiciary Committee hearings. As Grossman notes, a bill is now pending that would reverse DOMA to the extent that DOMA defines marriage, for federal law purposes, as a union between one man and one woman. She describes the varied, pending litigation related to DOMA, and considers some of the reasons DOMA has garnered complaint and opposition: Critics say it imposes unfair disadvantages on married gay couples, and many have observed that DOMA has spawned a bureaucratic nightmare.