In their article Unsexing Pregnancy, David Fontana and Naomi Schoenbaum undertake the important project of disentangling the social aspects of pregnancy from those that relate to a pregnant woman’s body. They argue that the law should stop treating the types of work either parent can do—such as purchasing a carseat, finding a pediatrician, or choosing a daycare—as exclusively the domain of the pregnant woman. The project’s primary aim is to undermine legal rules that assume a gendered division of labor in which men are breadwinners and women are caretakers. But Fontana and Schoenbaum argue their project will also have benefits in terms of equality for expectant LGBTQ parents. To further this project, this Response asks what unsexing pregnancy might look like for different types of pregnant people: (1) pregnant individuals who do not identify as women, (2) expectant couples in which one partner is pregnant, (3) expectant parents engaging a surrogate or pursuing adoption, and (4) pregnant people who rely on networks of family and friends for support and caregiving. It argues that, in each of these contexts, the extension of pregnancy benefits raises a unique set of questions. But across all of these contexts, it will take more than simply making existing pregnancy rules gender neutral to achieve equality.
In Unsexing Pregnancy, David Fontana and Naomi Schoenbaum make a compelling case against laws premised on the assumption that the caregiving tasks associated with pregnancy should be assigned exclusively to the pregnant woman. 1 David Fontana & Naomi Schoenbaum, Unsexing Pregnancy, 119 Colum. L. Rev. 309 (2019). They argue that pregnancy requires labor in addition to that entailed in childbirth, gestation, and related changes to the pregnant body. Pregnancy also entails forms of labor that are relational, social, and economic, such as arranging doctor’s appointments, researching the options for giving birth, and preparing financially and emotionally for the arrival of the child. 2 See id. at 326–32.
Unsexing Pregnancy makes a meaningful contribution to scholarship on workplace accommodations for pregnancy
In accord with Fontana and Schoenbaum’s article, this Response will pertain primarily to those rules that require workplace accommodations for pregnancy: the Family and Medical Leave Act (FMLA), those provisions of the Patient Protection and Affordable Care Act (ACA) pertaining to insurance coverage for pregnancy, and Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act of 1978. Health care is a workplace issue because of the number of Americans with employer-sponsored health insurance. This Response will not ask what unsexing pregnancy might look like with respect to Medicaid or other forms of public assistance, although it is important to note that the project of extending those benefits beyond pregnant women might have troubling implications. See, e.g., Khiara Bridges, The Poverty of Privacy Rights 5, 34 (2017) (explaining how state Medicaid programs subject pregnant women seeking prenatal care “to invasions of privacy that we might understand as demonstrations of the danger of government power without limits,” but noting that the author’s ethnographic research did not extend to fathers).
While Unsexing Pregnancy discusses equal protection cases related to family, criminal, and immigration law, it does not develop the impact that its argument might have on these doctrines, so I will leave consideration of those issues for another day. by offering an important and useful distinction between carework that is “tied to the physical fact of gestation” and carework that is not. 4 Fontana & Schoenbaum, supra note 1, at 313. Laws governing family leave and health insurance recognize, at least superficially, that mothers are not the only people with caregiving responsibilities after a child is born. But the law often takes for granted that only prospective mothers engage in carework during pregnancy. Unsexing Pregnancy explains how the assumption that women are solely responsible for pregnancy is significant, in that divisions of labor that begin during pregnancy are likely to persist. As scholarship on the allocation of administrative tasks in households has demonstrated, initial assignments of tasks often turn out to be “sticky,” 5 Id; see also Elizabeth F. Emens, Admin, 103 Geo. L.J. 1409, 1414 (2015) (“Moreover, admin produces distributional inequities not only for women, but also for people of many stripes; because admin is ‘sticky,’ it tends to stay where it lands.”). so women tasked with caregiving responsibilities during pregnancy are likely to retain those responsibilities after the child’s birth. These sticky assignments reinforce the gendered division of labor in which men are the presumptive breadwinners and women the presumptive caretakers.
The article therefore argues for heightened constitutional scrutiny of laws that classify by sex during pregnancy. 6 Fontana & Schoenbaum, supra note 1, at 314, 354. In a line of equal protection cases beginning in the 1970s, the Supreme Court struck down laws that distinguished between the sexes in ways that reflected and reinforced stereotypes about men’s roles as providers and women’s roles as caretakers. 7 See id. at 318–20. Prospective fathers might use this line of cases to challenge workplace accommodation rules that only provide benefits to pregnant women based on the assumption that women should do all the work to prepare for the birth of a child. 8 While the Supreme Court held in 1974 that sex discrimination is distinct from pregnancy discrimination for purposes of equal protection analysis, Geduldig v. Aiello, 417 U.S. 484 (1974), Fontana and Schoenbaum argue that Geduldig “should be read not to mean that pregnancy discrimination cannot be sex discrimination but that pregnancy discrimination constitutes sex discrimination only when founded on sex stereotypes.” Fontana & Schoenbaum, supra note 1, at 355. The result would be invalidation of laws that are not “substantially related” to physical differences between expectant mothers and fathers. 9 Fontana & Schoenbaum, supra note 1, at 355 (quoting United States v. Virginia, 518 U.S. 515, 524 (1996)). Under the Supreme Court’s sex equality jurisprudence, this is a strict test: “In practice, sex must serve as a ‘perfect proxy’ for the law’s objective.” Id. at 359 (quoting Mary Anne Case, “The Very Stereotype the Law Condemns”: Constitutional Sex Discrimination Law as a Quest for Perfect Proxies, 85 Cornell L. Rev. 1447, 1449 (2000)). For example, the authors argue that a law covering smoking cessation programs only for pregnant women would be invalid. Even though maternal smoking may be uniquely harmful to a fetus, “[s]ome studies show that paternal smoking has a substantial fetal impact.” 10 Id. at 361. The remedy would be to allow all expectant parents to take advantage of smoking cessation programs. 11 The remedy for sex discrimination could be “leveling up,” in other words, providing prospective fathers with the same higher level of protection as mothers, or “leveling down” and stripping pregnant workers of the extra protection. See id. at 362. Fontana and Schoenbaum generally advocate leveling up, because leveling down to eliminate pregnancy benefits altogether would disparately harm women’s workplace opportunities. Id. at 362–63. But see id. at 362 & n.321 (recognizing that the Supreme Court has held that whether to level up or down is to be determined based on the “legislature’s intent” (quoting Sessions v. Morales-Santana, 137 S. Ct. 1678, 1699 (2017)). By contrast, there’s no reason someone who is not pregnant would need “[a] back support pillow designed for pregnancy.” 12 Id. at 360. So a law that provides only pregnant individuals with insurance coverage to purchase such a pillow would be valid. 13 Id.
Unsexing Pregnancy contributes to conversations about the gendered distribution of parental responsibilities by elucidating how that distribution begins during pregnancy. 14 The primary objection the authors identify to their proposal is that it may invite intrusive participation by fathers in pregnancy, at the risk of the mother’s bodily autonomy. Id. at 363–68. But the authors argue that courts can distinguish rules extending prenatal benefits from those that would require pregnant women to involve prospective fathers in their decisionmaking. Id. at 364. In contexts in which paternal involvement implicates a mother’s bodily autonomy—such as the one-night stand who wants to attend an ultrasound appointment—health care privacy laws require the pregnant patient’s consent. Id. at 364 & n.331. The authors acknowledge that extending prenatal benefits to fathers could change the relationship dynamics within couples, giving fathers more leverage in disputes about the pregnancy. Id. at 365. But they argue that, on balance, extending pregnancy benefits would empower women because it would allow their partners to take on a larger share of the carework. Id. at 365–67. The article’s project is to remake workplace accommodation law so that it does not reflect or reinforce a traditional breadwinner–caretaker family structure. The article’s paradigm family—in other words, the family it imagines at the center of this project—is one anchored by a man and a woman who are both in the workforce and are expecting the birth of their first child. 15 See id. at 313–14. Its normative vision is a feminist one that seeks to undo legal rules and social structures that dictate particular gender roles for each member of that couple. While the article is conscientious in discussing the implications of each of its arguments for prospective LGBTQ parents, those implications are not its primary focus. 16 Id. at 313 (describing how the article “emphasizes the interlocking sex stereotypes of women’s and men’s respective roles in the family and at work that fuel gendered distributions of caregiving,” and “in doing so . . . also highlights the damaging consequences of the sexed pregnancy for other family configurations”).
This Response asks what unsexing pregnancy might mean for families beyond the article’s paradigm example. It pushes the argument from Unsexing Pregnancy further by untangling four ways in which the law might unsex pregnancy: (1) for individuals; (2) for couples; (3) for surrogacy and adoption arrangements; and (4) for networked pregnancies, 17 Cf. Melissa Murray, The Networked Family: Reframing the Legal Understanding of Caregiving and Caregivers, 94 Va. L. Rev. 385, 388 (2008) (discussing how “families rely on networks of nonparental caregivers in order to provide care”). in which a pregnant person relies on extended family, social circles, or public assistance rather than a partner. The aim of this Response is not to propose new legal rules; rather, it is to raise questions about how unsexing pregnancy might be a different project in the context of these different family forms. Normative considerations other than gender equity are at stake when pregnancy is unsexed in various contexts, including equality based on sexual orientation, gender identity, marital status, family form, race, and class. One theme that is apparent across these contexts is that social change will require more than simply redrafting the rules in sex-neutral terms; it will require affirmative efforts at equality and inclusion for all pregnant people. 18 Cf. Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57, 112–13 (2012) (distinguishing between laws that would unsex parenting in a “thin” and formal way from those that would do so in a “thick” and substantive way).
I. PREGNANT PERSONS?
One way that the law might “unsex pregnancy” is for individuals: The law could see pregnancy not only as something that happens to women’s bodies, but also as a bodily condition experienced by people who do not identify as women. Unsexing Pregnancy notes at the outset that transgender men may become pregnant. 19 Fontana & Schoenbaum, supra note 1, at 311 n.4. It points out that courts and employers might interpret statutes that provide benefits only to “expectant mothers” in an overly literal way, refusing to grant accommodations to pregnant men who have changed their birth certificate sex designations to male. 20 Id. at 338. Even if employers and courts are not so literal in their interpretations, transgender men are placed in the difficult position of having to make the inauthentic claim that they are “mothers” in order to receive benefits. 21 Id. Thus, unsexing pregnancy would have benefits for pregnant transgender men.
Unsexing pregnancy for individuals is an urgent project for pregnant people who are not women and need access to reproductive health care. This includes not just transgender men but also pregnant people with intersex variations and who identify outside the gender binary. And while extending existing pregnancy benefits to all pregnant individuals—regardless of the sex designations on their identification documents or their gender identities—would be a step forward, meaningful change requires more comprehensive efforts to ensure all pregnant people receive appropriate and affirming health care.
The idea of unsexing pregnancy may have benefits for any number of pregnant individuals who, for various reasons, do not fall into the category of “expectant mothers.” To understand who might fall into this group, it may be useful to consider the distinction drawn by LGBTQ rights advocates between “sex” and “gender identity.” 22 See, e.g., GLAAD, GLAAD Media Reference Guide 10 (10th ed. 2016), http://www.glaad.org/sites/default/files/GLAAD-Media-Reference-Guide-Tenth-Edition.pdf [https://perma.cc/2CL7-2HVM]. By offering these categories, I do not mean to posit any universal or necessary distinction, or to suggest that these categories are relevant to any other particular legal controversies. See Jessica A. Clarke, They, Them, and Theirs, 132 Harv. L. Rev. 894, 905–10 (2019) (arguing that debates over the objectively correct definitions of sex, gender, and related concepts obscure the normative and political stakes of particular legal controversies). “Sex” often refers to the male or female designation ascribed to an infant at birth, or “a combination of bodily characteristics including: chromosomes, hormones, internal and external reproductive organs, and secondary sex characteristics.” 23 GLAAD, supra note 22, at 10. By contrast, “gender identity” is “[a] person’s internal, deeply held sense of their gender,” as, for example, a man or a woman. 24 Id. Sex and gender identity do not always correspond in conventional ways: “Transgender” is a term for a person whose gender identity does not match the one commonly associated with the sex assigned to them at birth. 25 Id.
Neither sex nor gender identity are binary. Between 0.05 and 1.7% of infants have intersex variations: 26 Fact Sheet: Intersex, United Nations Free & Equal (May 2017), https://unfe.org/ system/unfe-65-Intersex_Factsheet_ENGLISH.pdf [https://perma.cc/L8YR-97MS] (“[T]he upper estimate is similar to the number of red haired people.”). Some of these variations may not be visible at birth, while others become visible at puberty, and others are chromosomal variations that never become visible. Id. “any of a range of sex characteristics that may not fit a doctor’s notions of binary ‘male’ or ‘female’ bodies.” 27 Intersex Definitions, InterACT, https://interactadvocates.org/intersex-definitions/ [perma.cc/G5VK-MPXJ] (last visited Sept. 7, 2019); see also Katrina Karkazis, Rebecca Jordan-Young, Georgiann Davis & Silvia Campores, Out of Bounds? A Critique of the New Policies on Hyperandrogenism in Elite Female Athletes, Am. J. Bioethics, July 2012, at 3, 5–6 (“Sex is commonly thought to be straightforward, consisting of two clear categories of male and female. Yet there are at least six markers of sex—including chromosomes, gonads, hormones, secondary sex characteristics, external genitalia, and internal genitalia—and none of these are binary.”). With respect to gender identity, in the 2015 U.S. Transgender Survey, the largest survey of transgender individuals to date, approximately one-third of respondents identified as “nonbinary” rather than as transgender men or transgender women. 28 Sandy E. James, Jody L. Herman, Susan Rankin, Mara Keisling, Lisa Mottet & Ma’ayan Anafi, Nat’l Ctr. for Transgender Equal., The Report of the 2015 U.S. Transgender Survey 18, 45 (2016), https://www.transequality.org/sites/default/files/docs /USTS-Full-Report-FINAL.PDF [https://perma.cc/7UQQ-GVLD]. Nonbinary is a term for a person who does not exclusively identify as a man or a woman. 29 GLAAD, supra note 22, at 11. Nonbinary people have a diverse array of gender identities, such as genderqueer, agender, or genderfluid. 30 See Clarke, supra note 22, at 905–10. They may use pronouns such as the singular “they” rather than “he” or “she.” 31 Id. While it is difficult to estimate the total number of nonbinary people, 32 See id. at 899 & n.21 (estimating half a million people, roughly the population of Miami, identify as nonbinary, but noting that the figure may not reflect the growing number of people who do not identify exclusively as men or women). a 2018 survey found that thirty-five percent of people ages thirteen to twenty-one know a person who uses nonbinary pronouns. 33 Kim Parker, Nikki Graf & Ruth Igielnik, Generation Z Looks a Lot Like Millennials on Key Social and Political Issues, Pew Research Ctr. (Jan. 17, 2019), http://www.pewsocialtrends.org/2019/01/17/generation-z-looks-a-lot-like-millennials-on-key-social-and-political-issues/ [https://perma.cc/CZZ8-YA5D].
Unsexing pregnancy could work by highlighting intersex variation: how some pregnant people may have chromosomes, hormones, or anatomy that do not all meet medical definitions of “female.” 34 See, e.g., Samantha A. Schoenhaus, Scott E. Lentz, Peter Saber, Malcom G. Munro & Seth Kivnick, Pregnancy in a Hermaphrodite with a Male-Predominant Mosaic Karyotype, 90 Fertility & Sterility 2016.e7, 2016.e7–e9 (2008) (on file with the Columbia Law Review) (discussing cases of pregnancy in individuals who had various traits, such as Y chromosomes or testicular tissue, that the physicians categorized as “male-predominant mosaic karyotype”). A tautological argument could be made that all people who are pregnant are “female,” because the definition of “female” is having those sex characteristics that enable a person to become pregnant. But this is not the only medical definition of “female.” 35 See, e.g., Karkazis et al., supra note 27, at 5–6 (“There are many biological markers of sex but none is decisive: that is, none is actually present in all people labeled male or female.”); Schoenhaus et al., supra note 34, at 2016.e9 tbl.1 (discussing a case of “[p]regnancy in a woman with a Y chromosome”). Unsexing pregnancy might mean recognizing that some people who are pregnant may have intersex variations. 36 See, e.g., Hida Viloria, Born Both: An Intersex Life 10 (2017) (discussing the author’s experience with pregnancy). It might mean adopting “intersex-affirming” health care practices that protect patients with intersex variations from the unnecessary examinations, violations of privacy, discrimination, and harassment they sometimes experience when seeking reproductive health care. 37 InterACT & Lambda Legal, Providing Ethical and Compassionate Health Care to Intersex Patients 8–9, 22–24 (2018), https://www.lambdalegal.org/sites/default/files/ publications/downloads/resource_20180731_hospital-policies-intersex.pdf [https://perma.cc/ U4AP-69VC].
Alternatively, unsexing pregnancy could work by delinking gender identity from pregnancy, recognizing that not just women, but also transgender men and nonbinary people, become pregnant. While some transgender men and nonbinary people may seek surgical treatments that leave them incapable of pregnancy, not all do. In the 2015 U.S. Transgender Survey, only fourteen percent of transgender men and two percent of nonbinary individuals reported having had a hysterectomy. 38 James et al., supra note 28, at 101 figs.7.12 & 7.13. The survey also reports that twenty-nine percent of transgender men and sixty-eight percent of nonbinary people did not wish to have the procedure or were unsure if they ever wished to. Id. There are a number of reasons transgender people do not pursue surgery, including that some are unable to afford it or to take the requisite time off from work, school, or caregiving obligations; some desire to maintain the capacity to reproduce; and for some, surgery is not necessary to treat gender dysphoria or affirm their gender identity. See, e.g., Lisa Mottet, Modernizing State Vital Statistics Statutes and Policies to Ensure Accurate Gender Markers on Birth Certificates: A Good Government Approach to Recognizing the Lives of Transgender People, 19 Mich. J. Gender & L. 373, 407–09 (2013). Media coverage characterizes the “pregnant man” as a rare phenomenon, but a number of indicators suggest pregnant transgender men are not so unusual. 39 See Alexis D. Light, Juno Obedin-Maliver, Jae M. Sevelius & Jennifer L. Kerns, Transgender Men Who Experienced Pregnancy After Female-to-Male Gender Transitioning, 124 Obstetrics & Gynecology 1120, 1120 (2014) (reporting on the results of a study conducted in 2013 surveying forty-one transgender men who had experienced pregnancy); Juno Obedin-Maliver & Harvey J. Makadon, Transgender Men and Pregnancy, 9 Obstetric Med. 4, 4 (2016) (“[N]ews reports, documentaries, social media list-serves and video-sharing sites, guidebooks, fact sheets, and . . . lists of health service provider[s] with experience supporting transgender individuals in pregnancy and birth, suggest numbers of transgender individuals . . . seeking family planning, fertility, and pregnancy services could certainly be quite large.”). It is possible that fewer transgender men became pregnant in the past because many jurisdictions required surgeries, which often resulted in sterilization, as a condition of legal recognition. 40 See, e.g., Mottet, supra note 38, at 406, 424 & n.206. States are now moving away from surgical requirements as prerequisites to changing the gender marker on identification documents. 41 For information on the laws of every state, see ID Documents Center, Nat’l Ctr. for Transgender Equal., https://transequality.org/documents [https://perma.cc/BJQ3-4CRV] (last updated July 2019). In addition to transgender men, nonbinary individuals are increasingly reporting on their experiences being pregnant. 42 See, e.g., Jesi Taylor Cruz, Finding Community During Pregnancy as a Black Non-Binary Femme, The Establishment (Feb. 4, 2019), https://theestablishment.co/finding-community-during-pregnancy-as-a-black-non-binary-femme/ [https://perma.cc/F83T-R38N]; Rory Mickelson, I’m Pregnant, but I’m Not a Woman, Advocate (Nov. 13, 2018), https://www.advocate.com/commentary/2018/11/13/im-pregnant-im-not-woman [https:// perma.cc/NR7R-B4TL]; s.e. smith, For Nonbinary Parents, Giving Birth Can Be Especially Fraught, Rewire.News (Jan. 25, 2018), https://rewire.news/article/2018/01/25/nonbinary- parents-giving-birth-can-especially-fraught/ [https://perma.cc/4FC5-UK4L]; cf. A Womb of Their Own (Serious Play Films 2016) (documenting the experiences of six masculine-identified pregnant people). Pregnancies among people who are not women may increase as more people transition at younger ages and transgender and nonbinary identities become more socially understood. 43 Cf. Alexis Hoffkling, Juno Obedin-Maliver & Jae Sevelius, From Erasure to Opportunity: A Qualitative Study of the Experiences of Transgender Men Around Pregnancy and Recommendations for Providers, BMC Pregnancy & Childbirth, Nov. 2017, at 7, 18 (speculating that the perception of an increasing number of pregnant transgender men “likely represents a true shift, perhaps driven by cultural changes making non-binary transition more legible, increasing legibility of being pregnant and male, and possibly by increasing numbers of people transitioning younger in life”).
Policymakers, legal reformers, health care providers, and employers who seek to be more inclusive of transgender, nonbinary, and intersex identities and variations ought to take seriously the idea of formally disentangling binary concepts of “sex” and “gender identity” from pregnancy. As ACLU lawyer Chase Strangio has argued, the simplistic assumption that cisgender 44 “Cisgender” is a term that means a person whose gender identity matches the one commonly associated with the sex assigned to them at birth. women are the only people who can become pregnant is “literally killing trans people.” 45 Chase Strangio, Can Reproductive Trans Bodies Exist?, 19 CUNY L. Rev. 223, 241 (2016). For example, transgender men may not have access to proper obstetric or gynecological care due to discrimination by health care providers 46 See, e.g., id. at 242 (discussing data that “confirm that transgender people experience extreme discrimination in health care settings causing them to delay or avoid receiving care”); Cécile A. Unger, Care of the Transgender Patient: A Survey of Gynecologists’ Current Knowledge and Practice, 24 J. Women’s Health 114, 116 (2015) (“[I]ssues of gender identity remain either misunderstood or not well understood by physicians.”). and bureaucratic barriers, such as insurance companies that deny coverage for gynecological care if a patient’s sex is coded as “male” in their records. 47 Hoffkling et al., supra note 43, at 13 (finding that men who need gynecological or obstetric care “often faced challenges with booking or billing for those services, because of how computer and filing systems were managed”); Strangio, supra note 45, at 242. Failure to receive gynecological care such as routine Pap smears leaves transgender men and nonbinary people at higher risk of death from conditions such as cervical cancer. 48 In the U.S. Transgender Survey, only twenty-seven percent of transgender respondents who were assigned female at birth reported having Pap smears in the past year, compared with forty-three percent of the general population. James et al., supra note 28, at 102. In one survey of generalist OBGYNs, approximately eleven percent of respondents stated they refused to perform Pap smears on transgender men. Unger, supra note 46, at 114. In one case, a transgender man whose boyfriend brought him to an emergency room due to abdominal pain was triaged as “nonurgent” because a nurse failed to take the possibility of pregnancy seriously, despite being informed the patient was a transgender man who had received a positive result on a home pregnancy test. 49 Daphna Stroumsa, Elizabeth F.S. Roberts, Hadrian Kinnear & Lisa Harris, The Power and Limits of Classification—A 32-Year-Old Man with Abdominal Pain, 380 New Eng. J. Med. 1885, 1885, 1887 (2019) (“Having no clear classificatory framework for making sense of a patient like Sam, the nurse deployed implicit assumptions about who can be pregnant, attributed his high blood pressure to untreated chronic hypertension, and classified his case as nonurgent.”). After several hours of delay, a physician realized the man’s condition was urgent and he needed an “emergency caesarian delivery.” 50 Id. at 1886. The baby was stillborn. 51 Id. The researchers concluded that the patient would have received an earlier evaluation if he had been a cisgender woman, and “[e]arlier evaluation might have resulted in detection of the cord prolapse in time to prevent fetal death.” Id. at 1887. Even though the patient “had not planned or expected the pregnancy, he was heartbroken at the loss of his baby and had a major depressive episode.” 52 Id. at 1888.
Pregnancy can present unique challenges for transgender people because of “anti-transgender stigma, strongly gendered norms around pregnancy, institutional structures that do not recognize the possibility of a transgender man becoming pregnant, and lack of research and available information for providers or patients.” 53 Hoffkling et al., supra note 43, at 8. Transgender men have a range of experiences during pregnancy. 54 Id. For some, pregnancy can trigger gender dysphoria 55 “Gender dysphoria” is a form of “clinically significant distress or impairment in social, occupational, or other important areas of functioning” experienced by some transgender people. Am. Psychiatric Ass’n, Diagnostic and Statistical Manual of Mental Disorders 451–53 (5th ed. 2013). as they are forced to confront social attitudes and expectations about pregnancy as a woman’s experience. 56 See smith, supra note 42. One man said about his pregnancy: “I looked at it as something to endure to have a child.” 57 Light et al., supra note 39, at 1123 (internal quotation marks omitted). One qualitative study concluded that “[l]oneliness was the overarching theme.” 58 Simon Adriane Ellis, Danuta M. Wojnar & Maria Pettinato, Conception, Pregnancy, and Birth Experiences of Male and Gender Variant Gestational Parents: It’s How We Could Have a Family, 60 J. Midwifery & Women’s Health 62, 63 (2014). In another study, a pregnant man said he felt isolated because of the sense that he “was the only one.” 59 Light et al., supra note 39, at 1123 (internal quotation marks omitted). Another went so far as to avoid leaving his home because he was “fearful that out on the street, the sight of a pregnant man would invite trouble.” 60 Denise Grady, A Family in Transition, N.Y. Times (June 16, 2018), https://www.nytimes.com/2018/06/16/health/transgender-baby.html (on file with the Columbia Law Review). Some research suggests transgender men face a high risk of postpartum depression. 61 See Light et al., supra note 39, at 1126. Transgender men may also face challenges in deciding how to sequence their “surgical, medical, and social transitions relative to pregnancy.” 62 Hoffkling et al., supra note 43, at 15. Some report the need for “[h]onest advice on fertility options” and some report that they “felt misled” with respect to the “effects of testosterone—wrongly believing it is an effective contraceptive, or necessarily causes infertility.” Sally Hines, Ruth Pearce, Carla Pfeffer, Damien Riggs, Elisabetta Ruspini & Francis Ray White, Trans Pregnancy: Implications for Policy and Practice, Univ. of Leeds, https://transpregnancy.leeds.ac.uk/wp-content/uploads/sites/70/2018/11/Trans-Pregnancy- poster.jpg [https://perma.cc/8FL7-DV2V] (last visited July 30, 2019) (presenting initial findings of the Trans Pregnancy research project, based on semistructured qualitative interviews of fifty trans men and nonbinary people who were assigned female at birth); see also Julie Compton, Trans Dads Tell Doctors: ‘You Can Be a Man and Have a Baby,’ NBC News (May 19, 2019), https://www.nbcnews.com/feature/nbc-out/trans-dads-tell-doctors-you-can-be-man-have-baby-n1006906 [https:/perma.cc/SM2W-JY7N] (last updated May 20, 2019) (reporting on examples of “misinformation and discouragement transgender men say they face from the medical establishment when they decide to get pregnant—a problem advocates and experts blame on a lack of training and research around transgender health care, as well as doctors’ biases”).
Health care and pregnancy services providers often lack competency in providing care for pregnant people who are not women. 63 Hoffkling et al., supra note 43, at 12–13. Pregnant transgender patients may face exclusion; for example, one transgender man reported that he was denied lactation coaching. 64 Id. at 12. They may be harassed; one man reported that health care providers told him that “Child Protection Services was alerted to the fact a ‘tranny’ had a baby.” 65 Light et al., supra note 39, at 1124 (internal quotation marks omitted) (quoting a survey participant); see also Hoffkling et al., supra note 43, at 17 (“Participants were misgendered, laughed at, and told they could not make good parents.”). Like some patients with intersex variations, 66 See InterACT & Lambda Legal, supra note 37, at 8–9, 22–24 (“Historically common, the unnecessary examination and exhibition of intersex people’s bodies as medical ‘curiosities’ has been described as deeply shaming and traumatizing by intersex individuals for decades.”). transgender patients report receiving “seemingly unnecessary physical exams—especially pelvic exams.” 67 Hoffkling et al., supra note 43, at 12. Or they may be ignored. One transgender man reported that “many OB/GYN spaces ‘feel like they only cater to women giving birth . . . and that made me feel alienated.’” 68 Id. at 13. A woman who attended birthing classes with her pregnant nonbinary spouse described her discomfort with the “constant use of ‘mamas,’ ‘moms,’ and ‘ladies’ to refer to the pregnant people in the room.” 69 Tori Truscheit, All the Things I Worry About as My Nonbinary Partner Prepares to Give Birth, The Cut (Dec. 12, 2017), https://www.thecut.com/2017/12/giving-birth-outside-the-gender-binary.html [https://perma.cc/8L83-4DF3]. She explained: “My partner’s the one giving birth, but I’m the one who will go by ‘Mom’ when our kid is born.” 70 Id.
As a result of mistreatment, some transgender men and nonbinary people avoid obstetric care or fail to disclose relevant information to medical professionals. 71 Hoffkling et al., supra note 43, at 8 (“Within healthcare settings, stigma leads to inadequate information on the part of providers, as well as individual mistreatment of patients. These, in turn, can lead transgender men to avoid seeking care or avoid disclosing medically relevant information.” (footnotes omitted)); smith, supra note 42 (discussing how pregnant nonbinary individuals may sometimes avoid hospitals). Those who can afford to may seek out midwives or doulas who market themselves as “trans-friendly.” 72 See smith, supra note 42. One nonbinary person, Zoë Williams, “chose a home birth, in part to have access to care providers they could educate about their needs.” 73 Id; see also Light et al., supra note 39, at 1126 (reporting that transgender men surveyed about pregnancy “used nonphysician providers and nonhospital birth locations more frequently than the general public”). While pregnant individuals have the right to make medically informed decisions about where to give birth, there is some evidence that home births are associated with increased risks of infant deaths and seizures. 74 See The Am. Coll. of Obstetricians & Gynecologists Comm. on Obstetric Practice, Committee Opinion Number 697, at 1 (2017), https://www.acog.org/-/media/Committee- Opinions/Committee-on-Obstetric-Practice/co697.pdf [https://perma.cc/WBN9-PNTY] (noting that planned home birth is associated with a “twofold increased risk of perinatal death . . . and a threefold increased risk of neonatal seizures”). Discrimination should be eliminated so that it does not dictate this decision. Other transgender men and nonbinary people choose hospital births and keep their gender identities a secret from providers. For example, Peregrin Winkle, one nonbinary person, “said they ‘gritted [their] teeth and dealt with the misgendering silently’” during a hospital birth. 75 smith, supra note 42. “Race, class, and geography” can further complicate whether nonbinary people can find gender-affirming obstetric care. 76 Id.
As Fontana and Schoenbaum argue, laws, rules, and policies can be revised to change references to “wom[e]n affected by pregnancy” or “expectant mother[s]” to sex-neutral terms for pregnant individuals. 77 Fontana & Schoenbaum, supra note 1, at 360 (internal quotation marks omitted) (first quoting 42 U.S.C. § 2000e(k) (2012); then quoting 29 C.F.R. § 825.120(a)(4) (2018)); see also Clarke, supra note 22, at 954–55 (advocating that rules related to pregnancy be decoupled from gender identity). Semantic changes would have expressive value in making clear that all pregnant people deserve inclusion. These changes would avoid unnecessary arguments about, for example, whether a pregnant father or nonbinary parent qualifies for benefits reserved for “pregnant mothers.” Moreover, extending benefits to all pregnant individuals does not implicate the autonomy of the pregnant person in the way that extending the concept of pregnancy to a partner who is not gestating a child might. 78 See supra note 14 (discussing this objection to Fontana and Schoenbaum’s proposal).
There are potential downsides to this form of gender neutrality. One potential downside is that it might require some unconventional grammar. Policies that refer to “she” or “her” might need creative revisions. But such grammatical challenges are not insurmountable. The proposed Pregnant Workers Fairness Act avoids gendered references by referring to “workers,” “employees,” or “applicants,” rather than mothers. 79 Pregnant Workers Fairness Act, H.R. 2417, 115th Cong. §§ 2, 7 (2017). More importantly, rules of grammar should not trump considerations of inclusion. 80 See, e.g., Robin Dembroff & Daniel Wodak, The Problem with Pronouns, Philosopher: Featured Philosophers (June 23, 2017), https://politicalphilosopher.net/ 2017/06/23/featured-philosophers-robin-dembroff-daniel-wodak/ [https://perma.cc/4PN6- NEUU] (“[A] moral should clearly defeats any grammatical should.”).
A second potential downside is that this move might throw a wrench in the formalistic legal argument that protection against pregnancy discrimination is required to ensure equality for the class of “women,” because “only women can become pregnant.” 81 See Strangio, supra note 45, at 229–31 (quoting Geduldig v. Aiello, 417 U.S. 484, 496 n.20 (1974) in its discussion of this argument). But as Fontana and Schoenbaum argue, the Supreme Court has rejected the formalistic equation of women with pregnancy, while leaving the door open to the argument that rules that classify based on pregnancy might be constitutionally suspect if they are pretexts for sex discrimination. 82 Fontana & Schoenbaum, supra note 1, at 314 & n.14 (discussing Gen. Elec. Co. v. Gilbert, 429 U.S. 125 (1976) and Geduldig, 417 U.S. 484). Moreover, as I have argued elsewhere, the formalistic legal argument is not doing the persuasive work in debates over pregnancy discrimination. 83 Clarke, supra note 22, at 955–56. Formalistic arguments are less persuasive than “more substantive arguments linking pregnancy discrimination to sex: for example, that in practice, discrimination based on pregnancy drives women’s inequality, that it is based on the assumption that all workers meet a traditionally male norm, or that it is a thinly veiled attempt to exclude women from the workplace.” Id. (footnotes omitted). Additionally, the formalistic argument has risks for feminists: “If the law defines women as a class by their capacity to become pregnant, then this capacity appears to be a legitimate basis for discrimination against women.” 84 Id. at 956 (citing Cary Franklin, Biological Warfare: Constitutional Conflict over “Inherent Differences” Between the Sexes, 2017 Sup. Ct. Rev. 169, 180 (2017)).
Making pregnancy benefits gender neutral is a starting point for transgender and nonbinary patients and those with intersex variations. But it will not “unsex” pregnancy for these individuals in a meaningful way. Broader strategies for change are required to ensure that all pregnant people receive appropriate medical care and experience pregnancy without harassment or discrimination. 85 See generally InterACT & Lambda Legal, supra note 37 (making recommendations with respect to care for patients with intersex variations); Nat’l LGBT Health Educ. Ctr., Providing Affirmative Care for Patients with Non-Binary Gender Identities 9, 12–13 (2017), https://www.lgbthealtheducation.org/wp-content/uploads/2017/02/Providing-Affirmative-Care-for-People-with-Non-Binary-Gender-Identities.pdf [https://perma.cc/4P3K- V2FQ] (explaining why “cultural competency around non-binary gender identities” is essential to improve health outcomes and sharing best practices for providing care to non-binary people). Courts should interpret existing prohibitions on sex discrimination in health care to forbid discrimination against transgender patients, 86 See Clarke, supra note 22, at 987–90 (discussing controversies over whether discrimination against transgender patients violates the nondiscrimination provisions of the Affordable Care Act). At the time of this writing, the Trump Administration has proposed a rollback of regulations interpreting the ACA to require nondiscrimination on the basis of gender identity. See Nondiscrimination in Health and Health Education Programs or Activities, 84 Fed. Reg. 27,846, 27,847, 27,857 (proposed June 14, 2019) (to be codified at 45 C.F.R. pt. 92) (proposing to “repeal the definition of ‘on the basis of sex’” that prevents discrimination based on gender identity). A case regarding whether discrimination against a transgender employee is a type of “sex” discrimination prohibited by federal law is also pending before the Supreme Court. EEOC v. R.G. &. G.R. Harris Funeral Homes, Inc., 884 F.3d 560 (6th Cir. 2018), cert. granted, 139 S. Ct. 1599 (2019). and legislatures should act to correct those courts that fail to do so. 87 See, e.g., Cal. Health & Safety Code § 1365.5(e) (2019) (clarifying that prohibited health care discrimination on the basis of “sex” includes gender identity and gender expression). The Equality Act, a bill passed by the House in 2019, would forbid discrimination on the basis of sex and gender identity in health care nationwide. Equality Act, H.R. 5, 116th Cong. (2019). Sterilizing surgeries should never be a precondition for changing the sex or gender designations on official identity documents and records. 88 See Mottet, supra note 38, at 406 (quoting Press Release, World Prof’l Ass’n for Transgender Health, Identity Recognition Statement (June 16, 2010) (on file with the Columbia Law Review)). Health care providers should ensure that medical records include information related to sex assigned at birth and gender identity, allow changes to information on gender identity without friction, and maintain patient privacy. 89 See Nat’l LGBT Health Educ. Ctr., supra note 85, at 7; Obedin-Maliver & Makadon, supra note 39, at 6–7; Stroumsa et al., supra note 49, at 1887–88. Training, research, education, and institutional commitments are required to eliminate discrimination, harassment, and neglect—ensuring that all pregnant people receive care that affirms their gender identities and is grounded in “compassion and respect.” 90 Light et al., supra note 39, at 1124 (noting that many transgender men surveyed about pregnancy “called for better treatment from the health care system through acknowledging the unique identities of pregnant transgender men and grounding health care provider-patient interactions in compassion and respect”); see also Hoffkling et al., supra note 43, at 8; Obedin-Maliver & Makadon, supra note 39, at 6–7.
II. PREGNANT COUPLES?
Fontana and Schoenbaum’s article focuses on unsexing pregnancy not for individuals but for couples—two expectant parents, generally a mother and a father—in which the mother does a disproportionate share of the work of preparing for the baby’s arrival. The examples of unfair treatment of pregnant and nonpregnant parents in Unsexing Pregnancy are of two types: medical conditions and family responsibilities. By “medical conditions,” I mean the law’s failure to recognize the health impacts of pregnancy on the nonpregnant parent. By “family responsibilities,” I mean the law’s failure to recognize that much of the carework that goes into planning for the arrival of a child can be done by the nonpregnant parent. The extension of workplace accommodation law in the medical and family contexts raises different questions. With respect to medical conditions, the question is whether the unfairness lies in excluding fathers, or whether it lies in excluding anyone suffering from an incapacitating health condition. With respect to family responsibilities, the question is how expanding the law’s meager accommodations for pregnant mothers to expectant fathers might have any significant effect on the distribution of carework between parents.
A. Medical Conditions
Unsexing Pregnancy describes a number of ways that pregnancy can affect the health of the nonpregnant parent, such as couvade syndrome, in which “pregnancy symptoms such as nausea, weight gain, mood swings and bloating occur in men,” and antenatal depression, which may occur in ten percent of expectant fathers. 91 Fontana & Schoenbaum, supra note 1, at 337 n.170 (quoting Katherine E. Wynne-Edwards, Why Do Some Men Experience Pregnancy Symptoms Such as Vomiting and Nausea when Their Wives Are Pregnant?, Sci. Am. (June 28, 2004), https:// www.scientificamerican.com/article/why-do-some-men-experienc [https://perma.cc/C7PX- FAAY]). Under the Family and Medical Leave Act (FMLA), a pregnant person can take leave for “[a]ny period of incapacity due to pregnancy,” while a nonpregnant partner must have a “serious” health condition. 92 Id. at 337 & n.169 (quoting 29 C.F.R. § 825.102 (2018)). Additionally, some state laws require reasonable accommodations for conditions related to pregnancy, but not for nonpregnant parents. Id. at 339. Thus, a prospective father’s antenatal depression would have to meet a higher bar than a mother’s for the father to qualify for leave. Fontana and Schoenbaum advocate “leveling up” to extend benefits to both parents, rather than “leveling down” to end benefits for everyone. 93 See supra note 11. Accordingly, any expectant parent incapacitated by antenatal depression should be permitted leave.
This example raises questions, however, about why those health conditions that affect expectant parents should be treated with exceptional solicitude by employment law. There are many types of incapacitating depression that are not antenatal. Consider a worker who suffers from incapacitating depression because they are caring for an older child with a serious illness. What message does the law send if it reserves the most favorable treatment only for those health conditions related to unborn children? Or what if the employee with depression is caring for an elderly parent with dementia? 94 See, e.g., Martin Pinquart & Silvia Sörensen, Differences Between Caregivers and Noncaregivers in Psychological Health and Physical Health: A Meta-Analysis, 18 Psychol. & Aging 250, 250 (2003) (discussing studies showing that caregivers, particular those caring for a person with dementia, report more negative mental and physical health). Why should an expectant couple benefit from a more lenient standard? The disparate impact of childcare on women cannot be the answer, as the majority of unpaid eldercare providers are women. 95 See, e.g., AARP & Nat’l All. for Caregiving, Caregiving in the U.S. 17 (2015) (surveying 1,248 unpaid caregivers, and finding that sixty-six percent of caregivers for adults over fifty were women); Liz O’Donnell, The Crisis Facing America’s Working Daughters, Atlantic (Feb. 9, 2016), https://www.theatlantic.com/business/archive/2016/ 02/working-daughters-eldercare/459249/ [https://perma.cc/Y2JR-884U]. To go further, why does the workplace fail to offer sick leaves or accommodations for any “incapacity” that results from mental illness, whether connected to caregiving or not? What principle justifies drawing a line at pregnancy? 96 The principle might be related to what Katherine Franke has called “repronormativity”: the view that childbearing should be “incentivized and subsidized” rather than other socially valuable forms of caregiving or cultural production. Katherine M. Franke, Theorizing Yes: An Essay on Feminism, Law, and Desire, 101 Colum. L. Rev. 181, 184 (2001). There are reasons to be skeptical of repronormative policy justifications. For example, the argument that the United States must encourage births to replace its population overlooks the fact that this end can be achieved through immigration policy. Mary Anne Case, How High the Apple Pie? A Few Troubling Questions About Where, Why, and How the Burden of Care for Children Should Be Shifted, 76 Chi.-Kent L. Rev. 1753, 1773–74 (2001). The purpose of this Response is not to offer an argument about where the line should be drawn, but rather, to point out that there are important questions about why accommodations for medical conditions should be limited to expectant parents.
B. Family Responsibilities
Fontana and Schoenbaum’s main focus is not the medical conditions that accompany pregnancy; rather, it’s the family responsibilities. They are concerned that the carework associated with pregnancy is only accommodated or remunerated if taken on by the pregnant parent. One value of the article is that it offers a lengthy catalogue of all the types of carework that go into pregnancy, especially for first-time parents, from purchasing diapers, to learning how to care for a newborn, to finding a pediatrician. 97 Fontana & Schoenbaum, supra note 1, at 327–30 (describing these forms of carework as investments in physical, human, and social capital). This is a useful project in itself, because these forms of work—most often done by women—are too infrequently accounted for. But there is a striking mismatch between the length of the to-do list for expectant parents and the set of legal rules that might support them. The default position of U.S. law is that the costs of all carework are properly borne by the private family, rather than by employers or the public. 98 See generally Martha Albertson Fineman, The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies 1 (1995) (critiquing the privatization of dependency). It is therefore unlikely that expanding the few exceptional legal rules that support pregnancy to fathers will have significant effects on parental behavior.
Pregnant women on the lower rungs of the socioeconomic ladder are more likely to experience adverse employment consequences as a result of pregnancy. 99 Jennifer Bennett Shinall, The Pregnancy Penalty, 103 Minn. L. Rev. 749, 817 (2018) (“Regardless of how disadvantaged status is defined—through educational level or household income level—pregnant women in the labor market who fall on the low end of the distribution face employment gaps that are many times higher than pregnant women with advantaged socioeconomic status.”). It is for these workers that existing legal protections for pregnancy are the least useful. Unsexing Pregnancy points out that the FMLA provides only mothers with leave for prenatal care, even though that category of care could include work fathers might do too, such as “attending appointments” and “obtaining essential knowledge about how to care for a newborn.” 100 Fontana & Schoenbaum, supra note 1, at 336 (discussing 29 C.F.R. § 825.120(a)(4) (2018)). But the FMLA provides only a total of twelve weeks of leave per year to any one employee, for any covered purpose, whether prenatal or postnatal, and whether related to the birth of a child or not. 101 29 U.S.C. § 2612(a)(1) (2012). This is just one of the many limitations of the FMLA. Additionally, the FMLA does not apply to employers with fewer than fifty employees. Id. § 2611(4)(A). It does not apply unless the employee has been with the employer for at least one year and has worked at least 1250 hours in the year prior to the leave. Id. § 2611(2)(A). By one estimate, forty percent of the workforce is outside the FMLA’s coverage. Joan C. Williams, Reshaping the Work-Family Debate: Why Men and Class Matter 8 (2010). And that leave is unpaid, meaning it can only be taken by a worker who can afford to lose the income. 102 29 U.S.C. § 2612(c). Some states and localities require paid leave, but these laws “remain rare.” Shinall, supra note 99, at 809–10. A couple may calculate they can only afford to lose one income, not two. 103 See, e.g., Ann O’Leary, How Family Leave Laws Left Out Low-Income Workers, 28 Berkeley J. Emp. & Lab. L. 1, 45–46 (2007). Even if the pregnant person’s presence is not required for prenatal care activities, a couple may calculate that the woman should take the leave because male partners tend to earn more. 104 See, e.g., Joanna L. Grossman, Job Security Without Equality: The Family and Medical Leave Act of 1993, 15 Wash. U. J.L. & Pol’y 17, 38 (2004) (“[T]o the extent available parental leave is unpaid, there exists a clear incentive for a couple to prefer maternal leave over paternal leave, given the likelihood that a husband out-earns his wife.”). And even in those places where paid leave is available, many workers do not take it because of fear of retaliation from their employers. 105 See, e.g., Eileen Appelbaum & Ruth Milkman, Leaves that Pay: Employer and Worker Experiences with Paid Family Leave in California 28 tbl.8 (2011), http://cepr.net /documents/publications/paid-family-leave-1-2011.pdf [https://perma.cc/PGG8-MC9W]; Catherine Albiston & Lindsey Trimble O’Connor, Just Leave, 39 Harv. J.L. & Gender 1, 39–40 (2016) (surveying workers about their reasons for not taking advantage of California’s paid family leave).
Expanding the law to fathers in elite jobs is unlikely to have much effect either. Elite jobs often give workers flexibility in scheduling as a perk, so these workers do not need to invoke the FMLA if they wish to take a break to engage in prenatal carework. 106 Albiston & O’Connor, supra note 105, at 62. Another example from Unsexing Pregnancy—allowable expenditures under Flexible Spending Accounts for childbirth, breastfeeding, or strength-training courses for pregnant persons but not for their partners 107 Fontana & Schoenbaum, supra note 1, at 341 & n.194. —is only likely to assist individuals in high tax brackets who likely could have afforded those expenses with their post-tax dollars anyway. 108 Leigh Osofsky, Who’s Naughty and Who’s Nice? Frictions, Screening, and Tax Law Design, 61 Buff. L. Rev. 1057, 1109 (2013) (“Researchers have found that highly educated and high income taxpayers are the primary users of flexible spending accounts and that being in a higher marginal tax bracket is strongly associated with increased participation in flexible spending accounts.”).
Moreover, empirical research gives reasons to be skeptical about whether expanding the meager protections offered to pregnant mothers will motivate prospective fathers to engage in more prebirth carework. Even when gender-neutral parental leaves are available, men do not take full advantage of them, for reasons that include social stigma and financial pressures. 109 See, e.g., Albiston & O’Connor, supra note 105, at 40–45; Shinall, supra note 99, at 826–27. Extending job-protected FMLA leave to expectant fathers attending prenatal doctors’ appointments will not break down the social stigmas or practical calculations that cause fathers to engage in less carework. 110 The FMLA allows a nonpregnant spouse to take leave only if that leave is “needed to care” for their pregnant spouse. 29 C.F.R. § 825.120(a)(5) (2019). Whether a father who was fired for attending a prenatal appointment might have a winning sex discrimination claim would depend on the circumstances. Compare Joan C. Williams & Stephanie Bornstein, The Evolution of “FReD”: Family Responsibilities Discrimination and Developments in the Law of Stereotyping and Implicit Bias, 59 Hastings L.J. 1311, 1320–21 (2008) (discussing sex discrimination cases in which men successfully prevail based on arguments that their employers applied gender stereotypes in penalizing them for engaging in carework), with Fontana & Schoenbaum, supra note 1, at 340 (pointing out that an employer might argue it was not engaged in sex discrimination in treating expectant mothers and fathers differently because it was only required to accommodate expectant mothers under the FMLA). Experience with paid leave programs internationally and in U.S. states suggests that the way to reduce gender disparities with family leave law is to offer high rates of wage replacement and provide “use it or lose it” leave to each parent: “For example, if the mother alone takes family leave, the family might only get four weeks of paid leave, but that time would double if the father also takes leave.” 111 Shinall, supra note 99, at 828.
Unsexing Pregnancy does not make the claim that equal protection challenges to existing pregnancy protections that exclude expectant fathers will cause significant shifts in behavior; it emphasizes instead the “powerful messages” that the law can send in promoting carework by fathers during pregnancy. 112 Fontana & Schoenbaum, supra note 1, at 347. By this the authors mean the law could make the idea that fathers should participate in pregnancy less “off-the-wall.” 113 See id. at 346. The idea of unsexing pregnancy for couples may have more promise as a public policy idea or social movement concept than as a litigation strategy. In terms of public policy, the ideas advanced in Unsexing Pregnancy might inform new legislation that provides more generous workplace protections for pregnancy. 114 For example, the proposed FAMILY Act, a federal law that would provide paid family and medical leave, borrows its definitions of “qualified caregiving” from the FMLA, rather than expanding those definitions in the way that the article would suggest. Family and Medical Insurance Leave Act, H.R. 1185, 116th Cong. § 3(6) (2019). In terms of social movements, the article might inform how prospective parents consider dividing up their work during pregnancy, and how progressive employers decide whether to accommodate them.
But to achieve these impacts, the idea might need some rebranding. For one thing, “unsexing” is an unlikely slogan for a social movement.
To the extent it is familiar at all, the term “unsex” is perhaps most well-known from Shakespeare, where it has a disturbing connotation: Lady MacBeth implored the spirits to “unsex” her so that she might commit heinous crimes contrary to her “maternal instinct.” Marjorie Garber, Shakespeare After All 713–14 (2005). Disparaging the maternal, Lady MacBeth taunts her husband as “too full of ‘the milk of human kindness’ to take the nearest way to the throne—murder.” Id. at 714.
Moreover, “sex” has the dual meaning of (1) pertaining to male–female and (2) pertaining to sexuality, and slippages between the two meanings are rampant. See Janet Halley, Split Decisions: How and Why to Take a Break from Feminism 24 (2006). But see Rosenblum, supra note 18, at 83–84 (using the term “unsex” deliberately despite the slippage between the two understandings). The term requires translation to make sense to a popular audience. 116 A Washington Post column on Fontana and Schoenbaum’s article put the term “unsex” in scare quotes and spent its first paragraphs explaining what the authors meant by it. Christine Emba, It’s Time to ‘Unsex’ Pregnancy, Wash. Post (Apr. 3, 2019), https:// www.washingtonpost.com/opinions/its-time-to-unsex-pregnancy/2019/04/03/5e876188-564e-11e9-9136-f8e636f1f6df_story.html?utm_term=.4e13a690b318 [https://perma.cc/2E8V- GSDU]. For another, the idea of the “pregnant couple” engenders biting resistance from those concerned that heterosexual, cisgender men are appropriating the experience of pregnancy from their partners or drawing false equivalences between their own experiences and pregnancy. 117 Consider the following joke from a late-night talk show:
“Hello, I’m Mila Kunis with a very special message for all you soon-to-be fathers: Stop saying, “We’re pregnant.” You’re not pregnant. Do you have to squeeze a watermelon sized person out of your lady hole? No. Are you crying alone in your car listening to a stupid Bette Midler song? No. When you wake up and throw up is it because you’re nurturing a human life? No. It’s because you had too many shots of tequila. Do you know how many shots of tequila we had? None. Because we can’t have shots of tequila. We can’t have anything! Because we’ve got your little love goblin growing inside of us.”
Jimmy Kimmel Live, Mila Kunis Against Men Saying “We Are Pregnant,” YouTube (June 10, 2014), https://www.youtube.com/watch?v=onDCvHtHSkY (on file with the Columbia Law Review). Many social conservatives have long cherished the idea of pregnancy as a special experience for women, and those who subscribe to traditional gender roles are unlikely to be enthusiastic about a project aimed at loosening them. 118 See, e.g., Emba, supra note 116 (“‘Unsexing Pregnancy’ is a phrase guaranteed to strike fear into the hearts of social conservatives everywhere. Yet—for now, at least—it doesn’t refer to robot wombs, a ban on gender reveal parties or Shulamith Firestone-esque radical feminist propositions.”). On the left, millennials are particularly critical of appropriation by dominant groups of the experiences and identities of subordinate group members. 119 See, e.g., Tracy Moore, Mila Kunis Is Right: Dudes, Stop Saying ‘We’re Pregnant,’ Jezebel (June 13, 2014), https://jezebel.com/mila-kunis-is-right-dudes-stop-saying-were-pregnant-1590564625 [https://perma.cc/TNV3-9V5M]. Their concern is that reconceptualizing pregnancy as a two-person experience trivializes the impacts and risks of gestation and childbirth for the body of the person carrying the child and obscures the way that pregnancy has long been a justification for the oppression of women. 120 See id. Fontana and Schoenbaum are careful not to falsely equate the experiences of nonpregnant partners with those of pregnant ones; their project is to expose the carework involved in pregnancy and distribute it more fairly. Rather than unbounding the concept of pregnancy, this idea may have more political potential if characterized as recognizing that nonpregnant prospective parents can also experience the joys and travails of expecting a child.
Thus, unsexing pregnancy for couples raises questions about whether pregnancy benefits should be conceptualized as related to health care needs or family responsibilities. If the FMLA should “level up” to cover incapacitating health conditions when they afflict either expectant parent, why not level up even more to cover incapacitating health conditions for all parents, all caregivers, or all workers? With respect to the distribution of carework in the family, the question is how constitutional litigation extending the meager set of existing pregnancy benefits to nonpregnant partners could change the incentives that cause pregnant people to take on the lion’s share of these responsibilities. It will take more than minor tweaks to the FMLA to unsex pregnancy for couples in a meaningful way.
III. PREGNANT THREESOMES?
A third sense in which the law might unsex pregnancy is for groups of three: couples seeking a surrogate or adoption arrangement. 121 It is also possible for single people to adopt or have a baby through a surrogate. Most of the issues discussed in this Part apply to these individuals as well. Surrogacy and adoption arrangements might unsex pregnancy in the sense of allowing people to become parents without coital reproduction. See Halley, supra note 115 (discussing the multiple meanings of the term “sex”). Fontana and Schoenbaum argue that laws that cover only “expectant mothers” have anomalous results with respect to various types of couples engaging a surrogate. These rules fail to cover “gay men who have engaged a surrogate,” since both men are expectant fathers, not mothers. 122 Fontana & Schoenbaum, supra note 1, at 338. But the term “expectant mother” might protect the woman in a man–woman couple that has engaged a surrogate, even though she herself is not pregnant. 123 Id. It might even cover both partners in a woman–woman couple, whether or not either one is pregnant. 124 See id. Fontana and Schoenbaum argue that these results offend the principle of Obergefell v. Hodges: 125 135 S. Ct. 2584 (2015). that different- and same-sex parents should be treated equally. 126 Fontana & Schoenbaum, supra note 1, at 350 (“The constitutional mandate to equalize different- and same-sex parents in the period after birth presumably extends in substantial part to the period before birth as well.”). The only possible policy rationale for such anomalous results would be the association of women with carework. 127 Id. (“This reinforces the constitutionally suspect stereotype that caring is women’s work . . . .”). Moreover, if the term “expectant mother” means intended mother, it might not cover a surrogate or a pregnant person who plans to place the child for adoption.
But what if workplace accommodation laws were neutral with respect to the gender identity of the pregnant individual, giving benefits to “gestational parents” or “pregnant persons” rather than “expectant mothers”? In that case, surrogates and pregnant individuals planning to place a child for adoption would be covered. However, no couple engaging a surrogate or seeking a child for adoption would be protected—whatever their sexual orientations or gender identities might be. Nonetheless, such rules would disadvantage couples consisting of two individuals who were both assigned male at birth, and are more likely to rely on surrogacy or adoption to become parents. 128 See Michael Boucai, Is Assisted Procreation an LGBT Right?, 2016 Wis. L. Rev. 1065, 1089–93. Any couple without at least one partner who can gestate a child would be disadvantaged. Different types of prebirth carework are involved in surrogacy and adoption arrangements, including, but not limited to: research on the medical options and legal constraints, engaging an agency, finding a clinic for in vitro fertilization, selecting an egg donor, establishing a relationship with the person who will be or is pregnant, negotiating legal agreements, and formalizing the adoption, among other things. 129 For thoughtful first-person narratives about these processes for becoming a parent, see, for example, Dan Savage, The Kid: What Happened After My Boyfriend and I Decided to Go Get Pregnant (1999) (open adoption); Darren Rosenblum et al., Pregnant Man?: A Conversation, 22 Yale J.L. & Feminism 207, 208–17 (2010) (surrogacy).
Extending workplace accommodation laws to these forms of care-work raises unique questions. Adoptive parents “may take FMLA leave before the actual placement or adoption of a child if an absence from work is required for the placement for adoption or foster care to proceed.” 130 29 C.F.R. § 825.121(a)(1) (2019). It specifies: “For example, the employee may be required to attend counseling sessions, appear in court, consult with his or her attorney or the doctor(s) representing the birth parent, submit to a physical examination, or travel to another country to complete an adoption.” Id. Although the birth parents may incur similar costs, they are not included in the regulation. Should the same accommodations be allowed for employees who seek to become parents by employing a surrogate? 131 This is a genuine question worthy of further consideration; this short Response does not take a position on whether workplace leave policy should aim to incentivize adoption over surrogacy. Why allow “expectant mothers,” but not any parent adopting a newborn to take leave for the purpose of “obtaining essential knowledge about how to care for a newborn?” 132 See supra note 100 and accompanying text.
Other questions involve surrogates themselves. For example, should a person engaged in surrogacy for profit receive pregnancy accommodations from their employer? 133 One Flexible Spending Account administrator—Cigna—has concluded that costs incurred by prospective parents with respect to fertility treatments for “non-dependent surrogates” are not covered expenses. Patricia Stapleton & Daniel Skinner, The Affordable Care Act and Assisted Reproductive Technology Use, 34 Pol. & Life Sci. 71, 80 (2015). One court has suggested the answer is yes. In Gonzales v. Marriot International, an hourly hotel employee gave birth to an infant pursuant to a gestational surrogacy agreement and then began to take breaks to express breast milk, first for the infant’s family and later to donate to a milk bank. 134 142 F. Supp. 3d 961, 965–66 (C.D. Cal. 2015). She alleged that after a few weeks, her employer told her she could no longer take lactation breaks because she was not “feeding ‘a child at home.’” 135 Id. at 966 (quoting Complaint at 7, Gonzales, 142 F. Supp. 3d 961 (No. 15-3301), 2015 WL 3609313). The employee argued this was in violation of California law, which requires employers to reasonably accommodate lactation. 136 Id. at 974. The court held: “[W]hether it is ‘reasonable’ to require an employer to accommodate an employee’s desire to express milk that she intends to donate or sell is a question of fact for the jury.” 137 Id. This holding left it to the jury to decide whether surrogacy is distinguishable from the sorts of side businesses or philanthropic activities that employers are not required to accommodate. It is difficult to see how the principle of sex equality answers that question. 138 According to the Gonzales court, the fact that the plaintiff was not allowed lactation breaks, while other employees who were pumping breast milk to feed their own children were, could be a basis for a sex discrimination claim because the plaintiff was penalized for failing to conform with stereotypes about traditional motherhood. Id. at 983. The rationale for accommodating surrogates might instead be to further the interests of the intended parents and the health and well-being of the future child.
This points to another question: What would it mean to put adoption and surrogacy arrangements on equal footing with more traditional methods of reproduction? According to one agency, the costs of surrogacy are between $90,000 and $130,000. 139 West Coast Surrogacy Costs & Fees, W. Coast Surrogacy, Inc., https://www.westcoastsurrogacy.com/surrogate-program-for-intended-parents/surrogate-mother-cost [https://perma.cc/J6UM-FNVE] (last visited July 31, 2019). Health insurers are only required to cover artificial reproductive technologies (ART) in fourteen states, 140 State Laws Related to Insurance Coverage for Infertility Treatment, National Conference of St. Legislatures, http://www.ncsl.org/issues-research/health/insurance-coverage-for-infertility-laws.aspx [https://perma.cc/BLQ8-6H8Y] (last updated June 12, 2018). Two additional states only require that insurers offer the coverage. Id. and only for cases of “infertility”—a term generally defined without LGBTQ couples in mind. 141 See Seema Mohapatra, Assisted Reproduction Inequality and Marriage Equality, 92 Chi.-Kent L. Rev. 87, 98–99 (2017) (“[E]ven in those few states where insurance companies have to cover ART, the definitions of infertility often anticipate medical infertility—not infertility due to being in a same-sex relationship.”). Moreover, not all states allow surrogacy, and some restrict it to married or different-sex couples, meaning many prospective parents may have to travel to make surrogacy arrangements, which adds additional costs. 142 Id. at 99. Due to these costs, people with access to ART are affluent and “largely white.” 143 Aziza Ahmed, Race and Assisted Reproduction: Implications for Population Health, 86 Fordham L. Rev. 2801, 2806–07 (2018). Moreover, clinics tend to stock white donors and charge more for eggs from white donors, sending “[t]he social message . . . that the industry is primarily designed for white consumers.” Camille Gear Rich, Contracting Our Way to Inequality: Race, Reproductive Freedom and the Quest for the Perfect Child, Minn. L. Rev. (forthcoming) (manuscript at 14–15) (on file with the Columbia Law Review). Legal scholar Seema Mohapatra has argued that equality would require changes to these state laws, increased insurance coverage, and efforts to reduce health care costs. 144 Mohapatra, supra note 141, at 103–04. Adoption is also expensive: One U.S. government source estimates that an adoption with a private agency may cost $20,000 to $45,000, 145 Child Welfare Info. Gateway, Planning for Adoption: Knowing the Costs and Resources 3 (2016), https://www.childwelfare.gov/pubPDFs/s_costs.pdf [https://perma. cc/GN45-C3AC]. although costs may be lower for black children. 146 See, e.g., Michele Bratcher Goodwin, Baby Markets, in Baby Markets: Money and the New Politics of Creating Families 6 (Michele Bratcher Goodwin ed., 2010). Americans who are not wealthy sometimes forgo adoption, or organize fundraisers in an effort to find the money. 147 See, e.g., Claire Swinarski, Why Is It So Expensive to Adopt a Child?, Wash. Post (Nov. 28, 2016), https://www.washingtonpost.com/news/parenting/wp/2016/11/28/ why-is-it-so-expensive-to-adopt-a-child/?utm_term=.8bc37f91d06e [https://perma.cc/N8BU- 89MA] (discussing GoFundMe pages, garage sales, karaoke nights, and foundations that provide grant money). There are a number of obstacles to adoption that reflect “irrational mistrust” of adoptive parents, including “an ‘intrusive’ and often ‘demeaning’ screening process, endless paperwork and ‘red tape,’ and confusing regulations that vary from one jurisdiction to another—all of which can be expensive to navigate.” 148 Boucai, supra note 128, at 1112 (footnotes omitted). Legal scholar Michael Boucai has argued that leveling out these disadvantages would require “direct services to [potential adoptive parents], public education, government subsidies, and reform of the adoption process itself.” 149 Id. at 1113 (footnotes omitted).
My purpose in this short Response is not to take any position on whether employers or public policy should attempt to equalize the costs of coital reproduction, surrogacy, and adoption for prospective parents. In addition to LGBTQ equality, this question implicates difficult issues related to race, class, the best interests of children, and the rights of parents. My aim instead is to ask what it would mean to “unsex pregnancy” in the context of couples in which neither partner can become pregnant themself. In light of the many practical and financial barriers to adoption and surrogacy, litigation challenging sex classifications in pregnancy benefits is unlikely to offer much assistance to these prospective parents.
IV. NETWORKED PREGNANCIES?
Finally, rather than seeing pregnancy as the work of individuals, couples, or groups of three, the law might universalize the experience of pregnancy, seeing prebirth carework as requiring broad public support. This project might extend accommodations beyond the two-parent model to extended family members, friends, and public services that might assist pregnant individuals. It would require creative thinking about how to restructure the provision of health care and workplaces to offer better work–family balance for all.
Many pregnant people rely on networks of extended family and friends for support, rather than a parent partner. 150 See e.g., Murray, supra note 17, at 393 (“In families headed by single parents, extended family and friends may informally take on a substantial caregiving role”); Laura A. Rosenbury, Friends with Benefits?, 106 Mich. L. Rev. 189, 209 (2007) (explaining that some “people prefer to experience personal connection, and give and receive care, through friendship rather than family.”). This may be particularly true for families of color. Professor Melissa Murray explains that “[w]ithin the African-American community, for example, parents frequently share caregiving responsibilities and material resources with community members in an arrangement known colloquially as ‘other-mothering.’ In Latino communities, compadres—literally ‘co-parents’—play a central role in the child’s spiritual upbringing and often are expected to share the parents’ caregiving responsibilities.” 151 Murray, supra note 17, at 391–92 (footnotes omitted). Yet workplace accommodation laws, like the FMLA, are “unrealistically focused on parenthood as the locus of caregiving.” 152 Id. at 408.
One example of a pregnancy benefit discussed throughout the Fontana and Schoenbaum article is smoking cessation programs, which insurers must cover for pregnant women under the Affordable Care Act (ACA). 153 See Fontana & Schoenbaum, supra note 1, at 360. The article argues that these programs should be extended from pregnant persons to fathers, because second-hand smoke is also harmful to a fetus. 154 Id. at 360–61. But what about pregnant people who live with family members other than an expectant father? If the reason for the smoking cessation program is the health of the fetus, then it would make sense to extend the program to anyone living in a household with a pregnant individual. Moreover, smoking is not just harmful to children; it is harmful to everyone. Thus, in 2014, the U.S. Departments of Health and Human Services, Labor, and Treasury issued a guidance clarifying that, under the ACA, private health insurance plans should cover tobacco cessation for everyone. 155 Covering Tobacco Cessation as Preventive Service: Who Is Making the Decisions?, Am. Lung Ass’n, https://www.lung.org/assets/documents/tobacco/who-is-making-the-desicions.pdf [https://perma.cc/LS66-XX4G] (last updated July 31, 2014).
Another example from Unsexing Pregnancy is FMLA leave for prenatal health care appointments. Fontana and Schoenbaum point out that the FMLA is limited in that only the “spouse” of the pregnant employee may take prenatal leave, and only if necessary “to care for a pregnant spouse.” 156 Fontana & Schoenbaum, supra note 1, at 338 (discussing 29 C.F.R. § 825.120(a)(5) (2018)). This is by contrast to postpregnancy, where the FMLA defines parents broadly to include “those with day-to-day responsibilities to care for and financially support a child.” 29 C.F.R. § 825.113(c), (d)(3). Unmarried expectant fathers may not take leave to care for their pregnant partners. Fontana and Schoenbaum critique this provision “for denigrating the father’s role in pregnancy” and point out that “forty percent of births are to unmarried mothers.” 157 Fontana & Schoenbaum, supra note 1, at 338. But what this provision denigrates is the unmarried father, rather than fathers in general. Whether this marital-status distinction is justified is a different question than whether to unsex pregnancy. 158 The law may presume that parents who are not married chose that arrangement precisely because they were not sure if they wished to provide care to one another or to coparent. Cf. June Carbone & Naomi Cahn, Nonmarriage, 76 Md. L. Rev. 55, 103 (2016) (“Even where disqualifying behavior such as domestic violence is not an issue, unmarried couples report that the instability in their lives that comes from insecure employment, unstable income, substance abuse, and involvement with the criminal justice system make them wary of the type of commitment marriage entails.”). Moreover, extending FMLA leave during pregnancy from spouses to fathers would not help those pregnant persons who rely on networks for care rather than partners. Some scholars have suggested licensing and registration schemes that would permit parents to deputize family and friends as alternative caregivers in these circumstances, enabling those friends or family members to take FMLA-protected leave to assist pregnant individuals in need of support. 159 Laura Rosenbury has proposed a system that would permit individuals to assign certain benefits—such as those available under the FMLA—to a person who is not their spouse or partner. Rosenbury, supra note 150, at 230–31. Professor Murray has suggested “expanding the relationships contemplated by the FMLA—and other public and private benefit schemes—to include more than just the parent/child dyad.” Murray, supra note 17, at 451–52 (proposing an administrative scheme that would provide licensing for nonparental caregivers, with the consent of a child’s legal parents). For pregnant people without private support networks, public programs might reduce the burdens of pregnancy by making prenatal health care faster, more convenient, and less intrusive, 160 See Khiara M. Bridges, Reproducing Race: An Ethnography of Pregnancy as a Site of Racialization 50–51, 58, 68 (2011) (describing how prenatal coverage under Medicaid often requires a pregnant patient to endure “hideously long waiting periods,” to “meet with [a] coterie of professionals,” and to “detail intensely personal and intimate facts about her life” all before receiving a medical exam, conditions patients with private insurance are not subjected to). and by directly providing necessary supplies when newborns leave the hospital. 161 See, e.g., Tal Trachtman Alroy, New Jersey Gives Out Free Baby Boxes in Move to Lower Infant Mortality Rates, CNN (Jan. 26, 2017), https://www.cnn.com/2017/01/26/ health/new-jersey-baby-boxes-safe-sleep/index.html [https://perma.cc/YDH3-ZYKQ] (“Babies born in New Jersey this year will go home with a sturdy, safe box to sleep in and additional newborn essentials–all for free.”).
The prenatal care example raises larger questions about why FMLA leave is needed for anyone to take a few hours off to attend a doctor’s appointment. U.S. workplaces—in which workers must often put in long and unpredictable hours—imagine the ideal worker as one with no care-taking responsibilities at all. 162 See Albiston & O’Connor, supra note 105, at 7 (“[E]mployers continue to expect their workers to be as available and dedicated as the industrial-era male breadwinner with a stay-at-home wife, even when these employers no longer provide a family wage, secure employment, or even regular hours in return.”). An increasing number of low-wage jobs are temporary, contingent, and precarious, with unpredictable scheduling in which shifts are announced at the last minute, making it difficult for workers to juggle caregiving commitments. 163 Id. at 2–4 (“The percentage of workers in the United States with variable schedules they do not control grew 74.2% between 1997 and 2004.”). Many workers lack access to paid sick days or vacation. 164 Id. at 4. The type of flexibility that might allow a worker to take time off during the work day to attend a prenatal appointment without trouble is a perk of those jobs at the top end of the economy. 165 Id. at 62 (discussing how well-paid workers tend to receive discretionary accommodations more often than low-wage workers do).
In light of these circumstances, undermining the gendered division of labor that begins with pregnancy will require more than making existing benefits gender neutral and more than even unsexing pregnancy; it will require thoroughgoing efforts to reform workplace structures and cultures. 166 Scholars have proposed a number of ideas. See, e.g., Williams, supra note 101, at 1–2 (“To match today’s workplace to today’s workforce, we need both public supports (subsidized child care, parental leave financed at a national level, national health insurance) and workers’ rights (mandated vacation time, proportional pay for part-time work, and the right to request a flexible schedule).”); Albiston & O’Connor, supra note 105, at 57–59 (proposing paid family leave and amendments to extend the coverage of the FMLA to all workers); Claudia Goldin, A Grand Gender Convergence: Its Last Chapter, 104 Am. Econ. Rev. 1091, 1092 (2014) (arguing for changes to the labor market to reduce the incentives of firms “to disproportionately reward individuals who worked long hours and who worked particular hours”); Vicki Schultz & Allison Hoffman, The Need for a Reduced Workweek in the United States, in Precarious Work, Women, and the New Economy: The Challenge to Legal Norms 131, 133 (Judy Fudge & Rosemary Owens eds., 2006).
Unsexing Pregnancy asks important questions about why workplace accommodations law presumes that only expectant mothers experience pregnancy or engage in pregnancy-related carework. Removing references to “mothers” and “women” from pregnancy rules is an urgent project to ensure that pregnant people who do not identify as women have equal access to reproductive health care and workplace accommodations. It is also important to update workplace rules that unfairly assume men do not or should not engage in carework during pregnancy. The article’s insights prompt other important questions, such as whether public policy and workplace rules should treat coital reproduction, adoption, and surrogacy arrangements differently; whether accommodations for medical conditions that affect pregnant as well as nonpregnant people should be extended to all expectant parents, all caregivers, or all people with the condition; how to restructure the workplace to be more humane for pregnant workers who rely on networks of friends and family for care and support; how to craft public policy solutions to support pregnant workers who lack private support networks; and how to reimagine the labor market in an era in which most families are no longer anchored by a female caretaker and male breadwinner. Unsexing pregnancy in a substantive sense will require more than revisions to existing rules to reflect gender neutrality; it will require new approaches that are attentive to the many differences among pregnant people and American families.