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Excerpted From: Catherine Powell, Color of COVID and Gender of COVID: Essential Workers, Not Disposable People, 33 Yale Journal of Law & Feminism 1 (2021) (239 Footnotes) (Full Document)


Catherine PowellWe live in a viral moment--a moment of interconnected pandemics. The COVID-19 crisis provides a window into the underlying pandemics of inequality, economic insecurity, and injustice. In fact, the viruses of sexism, racism, and economic instability are preexisting conditions of an unjust legal system into our nation at the Founding in the shadow of chattel slavery, female disenfranchisement, property-based voting rights, and Native American dispossession. COVID-19 has not created these conditions, but instead has amplified the persisting inequalities upon which the nation was built.

As the novel coronavirus (SARS-CoV-2)--the underlying virus that causes the coronavirus disease 2019 (COVID-19)--has become a global pandemic, like other viruses, the novel coronavirus knows no boundaries. It is a universal problem across geography, race, gender, class, etc.

However, COVID-19 does not affect us all equally. This Article explores how the coronavirus interacts with other viruses--the viruses of sexism and racism in particular. As British Professor Iyiola Solanke notes, “There are currently two viruses causing death and destroying lives around the world: one is coronavirus, the other is discrimination.” Building on Solanke's work, I am interrogating how these two viruses interact with (and amplify) each other, and what lawmakers should do to respond. Indeed, like the coronavirus, the virus of discrimination can lead to death, directly or indirectly. The deaths of Breonna Taylor, George Floyd, and others demonstrate the fatal outcomes of Sleeping While Black, Breathing While Black, Living While Black. While Solanke's predominant focus is on race, her analysis can be applied to gender and other forms of discrimination as well.

At the same time, the current viral moment reveals that vulnerability is universal and “inherent in the human condition,” making vulnerability analysis particularly timely for analyzing potential solutions to our interconnected pandemics. In theorizing a “vulnerability thesis” in the pages of this Journal, Professor Martha Fineman offers a compelling framework “to manage our common vulnerabilities,” even against a backdrop of differential vulnerability. As we emerge from the Trump presidency, commentators have observed, “coronavirus doesn't discriminate ... But America does.” Even as COVID-19 has unmasked deeply embedded structural inequalities, this moment of interlinked pandemics of coronavirus, inequality, and economic precarity affects us all, albeit disparately, and has torn at the very fabric of the social contract we owe one other and, in fact, depend on.

To theorize a way forward--taking a page from Derrick Bell's notion of “interest-convergence” propose a new concept, “viral convergence.” Both descriptive and prescriptive, I offer the idea of viral convergence as a way to not only analyze this moment of interlinked crises, but also to advance a theory of justice based in our interconnected interests in this viral moment. The road ahead calls for new legal paradigms and political coalitions that offer both universal solutions (for our shared vulnerabilities) and more targeted solutions (for disparate impacts).

This pairing of universal and targeted ways of addressing our interlocking pandemics maps onto existing challenges and initial responses, which have combined laudable universal solutions with, at times, unfortunate, misguided (as opposed to beneficial), targeted responses. For example, once COVID-19 restrictions, such as wearing face masks, were adopted ostensibly with universal application in mind to mitigate the coronavirus, such restrictions unfortunately suffered from targeted, unequal enforcement in New York: the New York Police Department violently arrested individuals in communities of color, while politely handing out face masks to white sunbathers in Central Park. Additionally, as discussed further in Part I, social distancing measures were recommended for us all to mitigate the health crisis, yet have created a corresponding economic crisis with a particularly dire impact on women and people of color--and especially women of color--further entrenching inequality. This comes as no surprise. Since the Founding, identity, space, and place have cemented social status--whether, for example, through Jim and Jane Crow or the public/private dichotomy in law.

More specifically, in the midst of COVID-19, this Article focuses in particular on the labor dimensions of these twin crises--health and economic-- for women of color, building on what I call the “Color of Covid” and “Gender of Covid.” I coined these terms in earlier, shorter interventions to document and investigate in real time what I view as race and gender justice paradoxes of the pandemic. Since women of color sit at the intersection of the raced and gendered dimensions of COVID-19's health and economic challenges, these women are central to the solution. Thus, I utilize both race and gender as lenses once again, but here I challenge feminists to reconceive the struggle for women's rights in ways that better center race and economic insecurity. Such a reconceptualization would benefit from the broader racial reckoning that is underway, as demonstrated by the largescale protests in support of Black Lives that emerged in the summer of 2020.

Taking the virus and discrimination analogy to its logical conclusion, Solanke offers a public health strategy for fighting the virus of discrimination. She notes that in the public health context, “[i]nterventions to reduce or remove risks in institutions and the environment are the norm rather than the exception; the public or social aspects of the epidemic must be addressed in order to break the chain of infection”--an approach that could be adopted “to more effectively tackle discrimination and perhaps even eradicate it.” In light of the preexisting health as well as preexisting discrimination conditions, my Article builds on Solanke's analogy, but more firmly locates its analysis at the intersection of race, gender, and economic insecurity. This approach recognizes and takes advantage of what I call the “viral convergence” of those affected and, thus, of the value of developing both universal and targeted legal solutions grounded in diverse coalitions.

Besides outlining the conceptual contours of the viral convergence idea, this Article seeks to explain what makes this moment potentially different, based on the diverse political movement that arose in the summer of 2020 in response to our pandemics of policing, poverty, and discrimination. In addition to offering a descriptive account of our interlinked pandemics of coronavirus and discrimination, I provide a prescriptive account identifying an “interest-convergence” toward building solutions--whether we conceive of these solutions in public health terms, as Solanke, or in justice terms, as Princeton sociology professor Ruha Benjamin, who calls for “viral justice”. At the same time, this Article builds on the work of scholars who have theorized about popular constitutionalism, including new important work on the entanglement of social movements and law.

By focusing on the intersection of race, gender, and economic insecurity, this Article also honors and builds on the legacy of important scholars whose path-breaking work has established intersectionality as a methodological framework for law and related disciplines. In many ways, feminist theorists have sought to “refashion both feminism and law to speak to the position of all peoples at the bottom, on the margins, and in the intersections, and not seek only the assimilation of privileged people at the top.” As historian Martha Jones reminds us, by “pivoting the center”--and centering our gaze on women of color--we can bring multiple voices into view and empower coalitions between people of color, Whites, women, and men.

Both historically and currently, race has been used to fracture women's efforts at coalition politics and our understanding of women's rights. Beyond dog whistles, during his time as president, Donald J. Trump used a bullhorn to mobilize raced and gendered tropes in multiple contexts--including, inter alia, immigration, criminal justice, welfare, voting rights, and housing, as well as in the context of pandemic-related economic recovery. To confront the use of race as a wedge issue to divide us, it is in the interest of all women--and all of us who value and benefit from the nation's founding ideals work across our differences and secure new legal frameworks that support the most vulnerable and a more just, feminist future.

Part I examines how gender and racial justice paradoxes are built into the COVID economy as a rubric for understanding the intersectional nature of the linked crises we face.

Because the current political, economic, and health challenges call for new legal paradigms, Part II provides a theoretical framework for the road ahead by proposing a new concept: “viral convergence.”

Part III applies this theoretical framework to potential policy solutions geared toward our sense of shared vulnerabilities--and corresponding possibilities for shared solutions--while attuned to differential vulnerabilities, recognizing the needs of women of color and other marginalized groups at various intersections. In so doing, the Article envisions renewing our social contract, not necessarily to perfect our union, but, in the words of poet Amanda Gorman:

[W]e are far from polished, far from pristine, but that doesn't mean
we are striving to form a union that is perfect.
We are striving to forge a union with purpose.
To compose a country committed to all cultures, colors, characters and conditions of man ....
We lay down our arms so we can reach out our arms to one another. ... Let the globe, if nothing else, say this it true.
That even as we grieved, we grew.

We must use this historic moment to grow. As Arundhati Roy suggests, we must both acknowledge the tragedy of COVID-19 while also utilizing this crisis for transformational change--by viewing the pandemic as a “portal” to a more just and equal world.

[. . .]

As a bridge between and among multiple disenfranchised communities, women of color--such as the founders of the Movement for Black Lives--stitch together many different constituencies in our otherwise divided society and can pave the way for broader movements for change. While the convergence of the health crisis with the pandemics of inequality, economic insecurity, and injustice is immensely challenging, this viral convergence provides a portal to a more just society (as the Civil War did for the Reconstruction and the Great Depression did for the New Deal). As poet Amanda Gorman reminds us:

If we're to live up to our own time, then victory won't lie in the blade, but in all the bridges we've made.
That is the promise to glade, the hill we climb.

Yet as Martin Luther King (and abolitionist Unitarian minister Theodore Parker before him) intuited, bending the arc of the moral universe toward justice requires political will. Political will depends on political engagement by “We the People”-- as many of us as possible--to rescue the idea of equality. It is not only those infected with COVID-19 who are desperately ill and on the verge of death; the democratic ideal of equality itself will remain on life support until and unless we can resuscitate it.

Professor of Law, Fordham Law School; Yale Law School, JD, 1992.

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