GENDER-BLIND,GENDER-NEUTRAL INEQUALITY

RECOMMENDED ARTICLE: Cynthia Starnes, One More Time: Alimony, Intuition, and the Remarriage-Termination Rule, 81 Ind. L.J. 971 (2006), available online at http://www.law.indiana.edu/ilj/volumes/v81/no3/4_Starnes.pdf.

RECOMMENDED ARTICLE: Pamela Laufer-Ukeles, Selective Recognition of Gender Difference in the Law: Revaluing the Caretaker Role 31 Harvard J. Law and Gender 1 (2008)

COMPARE, CONSIDER: Tali Schaefer, Disposable Mothers: Paid In-Home Caretaking and the Regulation of Parenthood 19 Yale J. Law and Feminism 305 (2008) or here

It is no news to anyone that women's function as society's childbearers is the reason society's laws and customs have relegated women to subordinate status.

Most women at some point during their lifetimes will become pregnant and bear children. But no woman will spend but a relatively small portion of her life in this capacity, and for many women, it has no relevance to their lives at all.

Freedom of choice aside, at some point SOMEONE is going to have to bear the future citizens that will keep this world going, and whoever it is, those someones will have one thing in common: they will be women.

Over the last thirty-odd years, we have rushed to do away with all laws that even hint at treating the sexes differently. And this is understandable. The sole real difference between men and women (that being, when there *is* going to be a child brought into this world, which of the sexes is going to be doing it) has been used to hurt women. It has been used traditionally in all other arenas of life to place women into restricted roles, whether or not that one difference bears any important nexus to anything else. And the fear of disparate treatment is very real, utterly rationale, thoroughly understandable.

But the solution is not to pretend that there is no difference between men and women where there is a difference. We recognize the illegality of ostensibly neutral laws with disparate impact in many areas of the legal system. We are afraid to look at them where women's acceptability is at stake. And we are hurting women...

If we had high-rise buildings with stairs, but no elevators, would it be equality to a person needing a wheelchair to tell them, "Go right ahead -- work on the twentieth floor. No one is stopping you. You're free to get up there however you can manage it."

We don't do that. AND, we do not have a problem worrying about how recognizing that a person who is differently enabled in an ambulatory capacity will be further discriminated against if we provide elevators as an alternative to the arbitrary method of using staircases to reach the upper floors.

In fact, we do just the opposite. We recognize that to NOT provide accessibility to the person in the wheelchair by the arbitrary insistence on stairs IS discrimination. And we do not pretend that merely making the stairs available in a neutral way to everyone, regardless of circumstance, is NOT discrimination.

To a very small extent we have permitted legislation recognizing discrimination against women when they are simply functioning as women, but for the most part, only in the actual throes of late-term pregnancy: some employment laws, a few laws here and there requiring pregnancy to be included in disability leaves, and similar laws.

More of the laws, however, serve to protect only those pregnant women who can function pregnant identically as they could function in a non-pregnant state, without protecting those women who cannot. (Suddenly, professional ability is not enough -- the woman lawyer or engineer must also become a super-athlete.)

"You've got equal opportunity to get up those stairs same as anyone else. Why, just last week, Mr. X, who used to be an Olympic weightlifter before he lost his legs, got all the way up to the fifteenth floor walking on his hands. And Ms. Y has no problem -- why she just has her chauffeur and bodyguard carry her up! If they can do it, what's your problem?"

Oh... but there is a difference, you say? Pregnancy and having a family is a CHOICE. A choice, just like so-and-so's choice to do drugs and drop out of school. He made a bad choice, and now it's his tough luck that he's not all that employable.

So... a family... what a frivolity. How would you feel about a rule that required women, if they wanted, say, an automobile, to have to trade their right to own real estate in order to obtain one... but men, of course, were permitted to have both. How would you feel about a rule that simply required women to pay more than men (work harder) for the automobile?

The point is, where there are existing inequities in the system -- let alone a biologically determined real and inalterable difference -- gender neutral laws only perpetuate the discrimination and inequities.

Does a man have to make a choice between fatherhood and his ability to achieve in the employment sphere?

Are we seeking equality for women only if they can live their lives as men do, never getting pregnant? Is it the feminist goal to set up THREE genders -- men's-with-or-without-children, women's-without-children, and women's-with-children?

We are so afraid of asking for "special treatment" for women...

Odd, but when men had no choice but to take off from work because of conflicting -- valued -- functions performed for the overall and indirect "benefit to society," they got special laws passed -- AND NO ONE COMPLAINED!!! The man in military combat? No problem, there are special laws to protect him from the service of lawsuits and creditors. Called up for the reserves? No problem -- your employer must hold your job. In fact, when you come back, we'll give you tuition credits and a break on housing loans... Jury duty? No problem -- even if you get stuck for six months, we'll pass laws to take care of you. The recognition that you are going to be sick sometime, maybe disabled? No problem -- it's something that happens to all men on occasion, and we have leaves and policies to handle it.

Consideration for pregnancy and childbearing? No. That's only something that could happen to a woman. Her problem.

THE FAMILY LEAVE ACT

Politically correct, and gender neutral, it has been heralded as some kind of gain for "parents" who must work. Never mind the unavoidable reality of life that pregnancy is just not an equal situation, and it is the woman who needs the leave. Never mind that the woman will be taking off work in any event, and that it is doubtful that both she and her working husband will do without any income while she recuperates. And never mind that if the woman is working, her family probably needs the income, and a shorter PAID mandatory maternity leave is what she and her family really need, not a law that permits either her or her husband to take a leisurely unpaid leave. And of course, unpaid "parental leave" does nothing at all for a single or divorced woman who is the sole support of a family and simply cannot afford to be without a paycheck -- ironically, the person most in need of help under these circumstances.

A l978 California law required employers to make special allowance for pregnancy leaves. The law was struck down by the federal courts when Lillian Garland sued California Savings and Loan, her employer, which argued that giving her a maternity leave discriminated against men. The National Organization for Women and the National Women's Political Caucus filed amicus briefs siding with the employer in the Supreme Court. They argued that pregnancy should be treated just like any other disability and since men were not given disability leaves, neither should pregnant women be given maternity leave. [Cal. Fed. Savings and Loan Assn. V. Guerra, 107 S.Ct. 683 (l987). The Supreme Court disagreed. And in this case, the Supreme Court was right!

Pregnancy is NOT akin to a health disorder. It is a natural, normal, expected and foreseeable EXTRA job that women alone perform. Last I checked, being a military reservist was also a "voluntarily chosen" conflict...

In brief, a few other examples of gender-neutral laws that perpetuate gender inequality:

CHILD SUPPORT GUIDELINES: In most states, are roughly calculated on a formula that takes into gender-neutral consideration, the combined income of the spouses and the amount of time the child will spend in each respective parent's home. The problem of shared/joint custody not alleviating "fixed overhead" is only now even starting to be acknowledged. The problem of limited human energy resources negatively impacting the custodial mother's wage-earning capacity is not considered. The extra human labor involved and the opportunity costs are neither recognized nor compensated for. The workplace biases that impact women more than men as to future income-raises and asset accumulation ability, and other existing economic costs that make life more expensive for women are not considered.

CHILD CUSTODY ON DIVORCE: The gender-neutral laws that have done away with presumptions in favor of women who have been the primary caregiver have permitted men to seek custody as a bargaining chip to trade off for assets, and require women to expend legal costs that they are less able than their ex-husbands to pay, just to maintain the status quo as it existed during the marriage.

(Unless and until we adequately compensate stay-at-home parents for the value of economic opportunity lost, men as a group will NOT be choosing to take on an equal share of parenting. Women will keep the job by biological default -- it is much easier, since she has to plan to adjust her employment for the delivery and recuperation period anyway, and thus ends up being primary caregiver in the initial weeks, to simply permit the pattern set to continue, especially if there are or will be more than one child. There is just no incentive to put two careers into upheaval.)

ALIMONY AND PROPERTY DIVISION LAWS: Equitable distribution and support based on current "need and ability to pay" does not compensate for the value of front-loaded contributions. Where the laws work against women, they are "protective" -- rehabilitative alimony as a preference, and just enough to maintain. Where the laws work against women, they are "economic partnership theory" -- an "equitable division" without regard to diminishment in future income-earning capacity.

It may be well and good to hypothesize that it is theoretically possible for the woman to have been the breadwinner, and for the man to have stayed home... the reality is, is if she's the breadwinner and he's the homemaker, they are going to be in big economic trouble when she gets pregnant and gets no paid leave to recuperate. When her employer marks demerits for repeated tardiness due to morning sickness. When, during a pregnancy, she becomes disabled... When six weeks after the birth of the child, she's STILL exhausted and just not functioning up to par (some women take up to a year to completely fully recover -- a factor that's been downplayed.) When her employer refuses to grant additional breaktime so that she can pump her breastmilk... because we don't want to give any special treatment to women.

(Sure, lots of women seem to do it all without missing a beat. And a lot more simply cannot. Some persons can run the marathon, too.)

CHILD CARE AND OUR TAX LAWS: The tax laws are gender-neutral... for the most part... that does not mean that the scheme itself or the theory of the law is gender-neutral in effect. Years ago, a group of mostly white men with wives at home thought that it would be a fair thing to permit a deduction from income for the personal but obviously necessary expense a man would incur moving his wife, children and household to another place in order to take a new job. It never occurred to them, that anyone would have a much more pressing and necessary expense in order to earn income -- child care. Why isn't *all* child care, however arranged, deductible?

Other laws are gender-neutral on their face, and also schematically, but still perpetuate hardship for women. E.g. the I.R.S. has had a policy of sending out notices to only one person per return. That's the first-named person. Which means, if one is the second-named person on a joint return, and one now lives apart from one's former spouse, one does not get notices of deficiencies--one only has an equal liability therefor. How many couples do you think list the wife's name first on their joint return?

And all men at some point have to stop work to retire. We have numerous schemes available for pensions and asset accumulation to plan for this. Work from age 18 or 21 to age 65, then take off. That's the norm we're all expected to live up to. It suits men's lives. But women live longer, by about eight years. THEY may need to "retire" briefly early in their careers, but may be more able to work beyond age 65. Where are the tax-advantaged savings and pension schemes to permit THIS employment pattern?

I think that if we are going to seek equal rights for the long-run, meaning equal access for men and women to the "20th floor," the economic, political, social institutions of the world, then we have to do a lot more, and a lot less than simply espousing notions of gender-blindness, and going along with sound-good, feel-good slogans of equality that have more to do with language than with promoting equality in effect.

Women are not "just like men."

ALL women should be entitled to achieve a measure of economic success, security, achievement, and power in their lives identical to that they would have been able to achieve had they merely been born male. That includes, not the bare equal opportunity to be judged as a man would be in the workplace, but an equal quality of life, along WITH, at their option, the choice to have the children and family and leisure time they would have chosen to have -- and could have had -- as men.

It does NOT include the "opportunity" merely to spend their lives struggling -- working longer, and harder, and sacrificing on the one hand in order to gain on the other.

It does NOT include merely the chance to choose to function in the employment sphere just like men do, in order to achieve economic parity, provided they forego parity in other areas.

That's not "equality" in any sense.

liz

1994

DO BABIES MATTER? The Effect of Family Formation on the Lifelong Careers of Academic Men and Women, by Mary Ann Mason and Marc Goulden. For women academics, deciding to have a baby is a career decision. Traditional narratives of the academic career must adapt to new demands and new constituencies. Report can be accessed at:http://www.yale.edu/wff/BabiesMatter.pdf

Also see: Bem, S. "Transforming the Debate on Sexual Inequality From Biological Difference to Institutionalized Androcentrism" Karin Bergstrom Costello, ed. Gendered Voices. Harcourt Brace, 1996

Myth -- "Equality under the law" means that men and women are the same in all ways.

Fact: "Equality" under the law means that WHEN men and women are the same in all ways, the law will treat them that way, and that when they are not, the law will not default to what is characteristic of "man" as the standard.

Thus, "equality under the law" means more than merely consideration of each person as an individual. It also means that that "consideration" will not be cast in terms of standards and rights that can attain only to non-gestating human beings. The law will not determine what is "reasonable" with reference solely to what would be "reasonable for a man;" the law will not determine what is "just" by reference solely to what could be "achievable by someone who cannot gestate;" and the law will not ignore reproductive differences between mothers and fathers where they do indeed exist and have effect.

"Now, in 1970, awake and asleep, A REVIEW OF MY LIFE... AS A WOMAN... kept repeating itself like a broken record going round and round inside my head. Again and again, I rehearsed -- in snatched phrases, fleeting images, half sentences -- that which I had grown up accepting as normal and now experienced as alien. As though waking from a dream, I found myself daily uncovering evidence of a culture within that had been hidden, so to speak, in plain sight.

"I was, suddenly, a candidate FOR LOST MEMORY.

"I REMEMBERED my mother and my aunt beaming when, as a child, I performed intellectually, at the same time telling me that I'd soon have to put a lid on it, since NO MAN wants a woman TO BE that smart and love is thE most imporant thing in a woman's life. I could see myself nodding, as though taking instruction in ... THE LAWS OF THE UNIVERSE.

"I REMEMBERED a classmate at City College taunting me with Aristotle, repeating the philosopher's assertion that women are THE FIRST DEVIATION IN NATURE -- a deformity, an infertile male -- and me responding hotly, but in the style of Katharine Hepburn sparring with Spencer Tracy, both of whom, beneath all the splendid speeches, also knew that love is the most important thing in a woman's life.

"I REMEMBERED an eminent physicist telling me that women could be good scientists but NOT great scientists; it had to do with a crucial difference in the nervous system.

"I REMEMBERED my young husband and me talking for hours about what we would do with the future, both CLEARLY taking it FOR GRANTED that HIS LIFE was to be OUR LIFE.

"I REMEMBERED an English Department chairman telling me, in the early 1960s that women did not receive tenure at his school, and me murmuring, "Of course" without surprise nor complaint.

"I REMEMBERED an analyst saying to me in that same decade, "You don't want to MARRY the great man, you want to BE the great man," as though he had discovered my dirty little secret, and I staring speechlessly at him; GUILTY AS CHARGED.

"NOW I FOUND MYSELF THINKING: WHO ON EARTH SAYS SUCH THINGS TO A HUMAN BEING WHOM THE SPEAKER CONSIDERS -- AS REAL -- AS HE IS TO HIMSELF? Who tells another person, whom you believe made in the same image as you, that the wish to experience one's own finite SELF to the fullest is UNnatural? WHO THINKS IT ACCEPTABLE that a set of needs described as essential to ANYone's humanity be considered necessary for some... BUT NOT FOR OTHERS? WHO INDEED."

-- Vivian Gornick on pages 12 and 13 of her biography of Elizabeth Cady Stanton entitled, "The SOLITUDE of SELF: Thinking about Elizabeth Cady Stanton," 2005.