What’s in a Name?

By Ayah Helmy and Joanna Woolman

Social movements that challenge the status quo are ingrained in millennial culture. Whether antiracism, feminism, womanism, or anticolonialism, new frameworks through which we view our institutions have been either developed or recently popularized. Public debates, such as the one concerning the name of the lake popularly known as Lake Calhoun or the land at Historic Fort Snelling, are important measures of the zeitgeist. They force us to examine the language and symbols we take for granted, such as the name of a lake or the existence of a century-old statue. 

In teaching our class about feminist jurisprudence, we challenge our students to consistently reframe social, legal, and political structures using a feminist lens. Feminism, as we understand it, encompasses antiracism, anticlassism, antiableism, anticolonialism, and more. Studying our legal system through these lenses can challenge its very foundation, as no law or opinion can be understood without the broader context of feminist jurisprudential theory. This means, for example, that we may examine the fact that pregnancy is treated as a disability because pregnancy leave was a concept retrofitted into a system that did not consider the needs of female workers. 

As lawyers, we are taught the value of institutions and the precedent set by laws and courts in the jurisdictions in which we practice. We eagerly swear an oath to uphold the laws that govern our work, and, ideally, arduously abide by that oath each day. However, as society develops and its mores change, the structures that bind legal analysis can be cumbersome and unyielding to the changing tides. Legal precedent can sometimes bind the hands of lawyers and judges who, through the evolution of our collective consciousness, have different ideas about justice than the men who wrote this country’s foundational documents and those who have historically been tasked with interpreting those documents. 

Our developing understanding of mass incarceration, institutional racism, sexism, and ethnocentrism can clash with the legal schema in which we operate. For example, through an understanding of the prison industrial complex via commentary by sociologists like LoÏc Wacquant or The New Jim Crow a la Michelle Alexander, the average judge may struggle to follow mandatory minimum sentencing guidelines or not have the tools at her disposal to address the issues that plague a defendant’s life that may have led to criminal behavior in the first place. Practicing the law in these dynamic times sometimes finds lawyers and judges performing legal gymnastics to achieve a just and equitable solution while following the law. 

From Black Lives Matter to applying Title VII to transgender individuals, this dilemma manifests in a variety of ways. It all, however, begins with the fundamental question: who created our laws and on what were these laws based? 

Beginnings of Change

American law is based, in large part, on the English common law that was in effect at the time of the American Revolution.[1] Plainly, for most of their existence, our laws have been written, adopted, and interpreted by wealthy white men. Accordingly, the voices of women, ethnic and racial minority groups, and the poor have been largely excluded in the creation of laws and their judicial interpretations. 

The first female in the United States to be admitted to the bar was Arabella Mansfield. This was in 1869. Three years later, the Supreme Court of the United States upheld Illinois’ decision to deny Myra Bradwell’s admission to the state bar, citing that the practice of law would destroy femininity and that, because the law stated that a woman could not enter a binding contract without her husband’s approval, she was barred from practicing many of the important duties of a lawyer.[2] It was not until a century later, in 1971, that the Court would use the Equal Protection Clause to overturn gender-based distinctions.[3] Further, it was not until 1976 that gender distinctions were scrutinized under intermediate scrutiny.[4]

The first black lawyer in the United States was Macon Bolling Allen, who entered the bar in 1844 and was elected as a probate judge in 1874. It is paramount to note that while Mansfield and Bolling Allen broke molds to become lawyers, they were outliers and their rights as individuals were extremely limited despite their outstanding achievements. While Bolling Allen passed the bar in 1844, SCOTUS denied both free and enslaved blacks their citizenship in the Dred Scott case in 1857. While Bolling Allen was a lawyer, slavery was still legal. Neither women nor African Americans could vote while these pioneers were licensed attorneys. 

While there is increasing representation of disenfranchised communities in the legal field, the legal standing of these communities still lags behind the standing of the demographic this system was built to protect.[5] Today, discrimination is still pervasive and the tools to address discrimination are limited. For example, in 2018, SCOTUS heard a case in which a company rescinded a job offer that it had extended to a black woman because she would not cut off her dreadlocks.[6] The company’s policy stated that employees cannot have “excessive hairstyles or unusual colors.” SCOTUS determined that discrimination based on race is only limited to discrimination based upon immutable characteristics, which, in SCOTUS’s opinion, did not include hair style—only hair texture. With a limited understanding of the history around black women’s hair and the concept of race as a social construct, SCOTUS enshrined employers’ ability to discriminate based on the mainstream’s perspective, which largely sees black women’s natural hair as unprofessional. This results in, essentially, a codification of the unspoken rule that people of color will only be able to be professionally and, therefore, economically successful if they leave their identities at the door. 

Intersectionality and the Law

Another example where the law has failed to keep abreast of changing understandings of disenfranchised populations’ lived experiences is the common law’s response to the concept of intersectionality. In her 1989 article, Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory, and Antiracist Politics,Kimberle Crenshaw argued that antidiscrimination laws, as they are currently written and interpreted, assume that race and gender are binary experiences.[7] This assumption leaves people without a voice, should their identities overlap with two disenfranchised groups. In practice, this lack of understanding results in cases like Degraffenreid v. General Motors, where an 8th Circuit court found that “black women” were not a protected class under the Civil Rights Act of 1968.[8] The plaintiffs in the case argued that black men were not discriminated against in the same way, and neither were white women, so black women were the only victims of the discriminatory practice. The Court determined that the Act only protected either one’s race or one’s gender, and so black women had to choose which of these two categories was used to discriminate against them. Unfortunately, however, since not all women were discriminated against in the same way and not all black people were discriminated against in the same way, the plaintiffs had no recourse for the discrimination they experienced.

Georgetown University Law professor, Robin West, posited in her seminal article, Jurisprudence and Gender, that modern legal theory is “essentially and irretrievably” masculine.[9] She argued that because of biological differences between men and women (women, she argues, can give birth and are, therefore, ultimately connected to other humans), the genders fundamentally differ in their approaches to how the individual is defined, which, in turn, leads to divergent moral positions on the rights and responsibilities of the individual in our society.[10] Therefore, she conjectured, because the law was created by men, it is a system that fundamentally ignores the perspectives and rights of women, and it sees the individual instead of the collective.[11] While some may disagree with the biological and cultural essentialism of West’s argument, she offers an interesting underlying question: can laws be equitable, inclusive, and flexible if they are written by a monolithic group? Can the law understand the experience of nonmale, nonwhite, and nonwealthy individuals if it was drafted by white, male, wealthy individuals? Can the common law model that bases future interpretations on past interpretations possibly keep up with an evermore diverse society? 

In her article Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, Lucinda M. Finley highlights the importance of legal language. “Language matters. Law matters. Legal language matters,” she notes.[12] Language is socially constructed, and so are the concepts it reflects.[13] There exists a bias toward the familiar. As we use pre-existing legal language, we assume the validity of that language and the concepts it constructs. One example Finley highlights to illustrate this concept is using the modifiers “working,” “single,” or “welfare” in relation to the word mother. By adding these modifiers to “mother,” we are reinforcing the concept that our assumption about mothers is that they are homemakers, married, and financially supported by their husbands. In assuming this type of motherhood, mothers who do not fit this mold are “subtly deviant.”[14] Another example she provides is the use of the term “minorities” to describe disenfranchised communities. This provides a myopic view of the world that focuses the experience on that of people of European descent living in the West, as people of color are only minorities in the West and, in fact, make up the majority of the world at large.  

The reason why legal language is so viscerally connected to justice is because language not only communicates concepts but also it reinforces worldviews and understandings.[15] The worldviews and understandings that are reinforced are the ones that belong to those who have historically always created the dialogue in our civil society. One way that the law has failed to keep up with changing mores is by upholding the sanctity of historical monuments and landmarks despite how these monuments contribute to inequity in our society. 

Local Names

In Hennepin County, the tension between cultural sensitivity and traditionalism has created a deeply entrenched debate about the name of Lake Calhoun, or in Dakota, Bde Maka Ska. In 2011, the Minneapolis Park and Recreation Board (MPRB) visited the possibility of changing the name of the lake after some Minneapolitans protested that such a landmark continued to be named after a voraciously proslavery politician. Its legal counsel found that the MPRB could not change the name, as state law delegates that power to the Commissioner of Natural Resources following a county board procedure, and only gives the commissioner that power during the first 40 years after the name is designated.[16] After the white nationalist shooting in Charleston, North Carolina, Hennepin County residents once again petitioned to change the name of Lake Calhoun. In the fall of 2015, Bde Maka Ska was added to the signage along with the lake’s other name. Eventually, the Department of Natural Resources agreed to change the lake’s name officially to Bde Maka Ska and the federal government also approved the name change. Some residents disagreed with the change and filed suit, citing that the process was illegal and that the lake’s name was part of its history and charm. However, in April 2019, the Minnesota Court of Appeals found that, since the lake had its original name for more than 40 years, only the Legislature could change its name. The department appealed this decision, and the Minnesota Supreme Court has decided to hear the case.

In the case of the lake, the crux of the issue lies in statutory interpretation: does the 40-year limitation on name changes apply to names that are offensive or only ones that are repetitive? If it only applies to mistakes or repetitive names, then the responsibility returns to the Legislature to change the rules regarding when a lake’s name can be changed by the county board process and commissioner approval. Looking at this issue from a feminist jurisprudential lens, it is possible to argue that the drafters of this statute could not foresee the need for a post-40-year change mechanism because of the limited intercultural considerations they likely had at the time.

Similarly, the Minnesota Historical Society (MHS) has held public hearings across the state to determine whether it should rename Historic Fort Snelling. The fort structure itself would remain Fort Snelling, but the name of the 23-acre tract of land around it is up for debate. The land surrounding the fort had the Dakota name Bdote, meaning the place where two waters meet. Archeologists have found that this location was an important trading and ceremony site for the indigenous population. Later, when it was a U.S. military fort, it was the site of a concentration camp of approximately 1,600 Dakota people.[17] MHS seeks to create a space where Minnesotans of all backgrounds can learn about the complexity of Minnesota’s history.[18]

Why is the naming of streets, landmarks, and other sites such a big deal? Going back to Lucinda Finley, language –and its implementation –matters. In having monuments that glorify proslavery politicians, what message do our institutions send African American community members? In embracing the erasure of Native language from our lands, what message do our institutions send Native community members? In upholding homages to our historical brutality, are we abdicating our roles in dismantling the systems that have resulted from that brutality and continue to shape our country today? 

The same legal structures that would maintain colonialist nomenclature would support stagnant views on disparities and discrimination under the law. It is in naming things –whether sites or concepts –that we identify our relationships with them. It is only by listening to diverse voices that we may adapt our practices, laws, and legal structures to give way to more flexibility and accountability under the same. 

[2] Bradwell v. State of Illinois, 83 U.S. (16 Wall.) 130 (1873).

[3] See Reed v. Reed, 404 U.S. 71 (1971).

[4] See Craig v. Boren, 429 U.S. 190 (1976).

[5] See, e.g., National Association of Women Lawyers 2015 Survey, https://www.nawl.org/d/do/343 (last visited October 23, 2019) (providing statistics on the disparities in legal employment based on gender and race). 

[6] EEOC vs. Catastrophe Management Solutions, No. 14-13482 (11th Cir. 2017).

[7] Kimberle 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). 

[8] Degraffenreid v. General Motors Assembly Div. St. Louis, 413 F.Supp. 142 (8th Cir. 1976). 

[9] Robin West, Jurisprudence and Gender, 55 U. Chi. L. Rev. 2, at 2 (1988). 

[10] Id., at 3.

[11] Id.

[12] Lucinda Finley, Breaking Women’s Silence in Law: The Dilemma of the Gendered Nature of Legal Reasoning, 64 Notre Dame L. Rev. 886 (1989). 

[13] Id., at 887.

[14] Id.

[15] Id., at 888.

[16] See Minn. Stat. §83A.02-07 (2018). 

[17] Minnesota Historical Society, The US-Dakota War of 1862, http://www.mnhs.org/fortsnelling/learn/us-dakota-war (last visited Oct. 23, 2019).

[18] Minnesota Historical Society, Historic Fort Snelling, www.mnhs.org/fortsnelling/naming (last visited Oct. 23, 2019).

Ayah Helmy

Ms. Helmy is an assistant Ramsey County attorney, advising county agencies and litigating on their behalf. Previously, she clerked in Hennepin County District Court, ran a solo practice, and worked for Washington, D.C., local government. Ms. Helmy is also an adjunct professor at Mitchell Hamline School of Law, teaching Feminist Jurisprudence. 

Joanna Woolman

Ms. Woolman is a member of the Minnesota State Supreme Court Juvenile and Adoption Rules Committee and the American Bar Association Center on the Children and Law Parent Attorney Steering Committee. She also regularly presents locally and nationally at trainings focused on parent advocacy, system reform, and trauma-informed practice. An associate professor at Mitchell Hamline School of Law, she teaches Criminal Law, Constitutional Law, and Feminist Jurisprudence. Prior to teaching, she worked as a public defender in Minnesota.

Illustrations by Madeline Buck

Ms. Buck is an illustrator and lawyer from Minneapolis. She enjoys creating visual aids that make complex legal concepts clearer. She believes that color and drawing are underutilized in the legal profession. Check out her legal-related illustrations at  www.maddybuck.com. Madeline Buck's illustrated book "Lake in Limbo" is available to download