Rather, it’s the title of a startlingly common-sensical article in the March issue of the Columbia Law Review, one that presents an idea that has yet to get the attention it deserves.
In their article “Unsexing Pregnancy,” George Washington University law professors David Fontana and Naomi Schoenbaum explain the basic reasoning behind sex-equality and equal-protection laws around parenting and care work: When roles and rights are assigned on the basis of sex, they often reinforce the association of men with work and the marketplace and women with the home. These expectations become self-perpetuating, limiting women’s potential at work and men’s roles in the family.
Thus, since the 1970s, the law has endeavored to “unsex” parenting and care work. Recognizing that much of the work of caregiving isn’t in fact biologically or otherwise necessarily the work of only women, the courts have worked to remove sex-based barriers created by legislation and lawmakers and advocates have worked to enact legislation in which sex-based limitations no longer apply.
Surprise! Men can parent, too! As a society, we’ve slowly come to realize that fathers can and should be involved in family life. Thus, the Equal Pay Act prohibits wage discrimination on the basis of sex, and legislation such as the Family and Medical Leave Act (FMLA) is studiously gender-neutral.
This realization is all well and good, the two law professors argue. But it’s too little, too late. That’s because, as Fontana and Schoenbaum point out, many sex-discriminatory social expectations and roles are set not just after a family has been formed, but before — during pregnancy. And this, oddly, seems to have escaped the United States’ notice.
“Sex-equality law’s pervasive efforts to disaggregate sex from caregiving after birth are in stark contrast to its failure to do so before birth,” the authors write. After all, pregnancy involves a wide range of work that is non-sexed; fathers may not actually carry the child, but they can buy car seats, take child-care classes and attend prenatal medical appointments just as well as mothers can. But caregiving during the nine months of pregnancy is rarely as “unsexed.” The forward-thinking FMLA provides post-birth leave for both mothers and fathers, for instance, but prenatal leave applies only to women. Employment protections under the Pregnancy Discrimination Act and essential health benefits under the Affordable Care Act apply only or mostly to women, too.
Extending sex-equality and equal-protection laws to both parents prior to birth, the authors argue, could bolster sex equality and in fact enhance women’s autonomy. Why would we wait to encourage men to fully participate in family life? Our current social and legal regime serves only to reinforce, from the outset, pernicious sex stereotypes that hold women back. It’s an argument that should be obvious, but the case isn’t often made.
Much has been made, however, of falling fertility rates, and of women choosing to have children later, to have fewer children or to not have any at all. And a major reason is cost — outlays on things such as child care and education have made parents reluctant to have children, or have made it impossible for them to have as many as they wish.
What’s discussed less is opportunity costs — in career advancement and financial stability — that accrue primarily to women. Equal Pay Day, the date that symbolizes how far into the year women must work to earn what men earned in the previous year (for women on average, it takes until April 2), highlighted the financial toll that gender inequality can have over a woman’s lifetime — much of the gender wage gap, research shows, can be attributed to motherhood penalties, the systemic disadvantages in pay, benefits and perceived competence that working mothers encounter compared with childless women. Fathers, on the other hand, tend to see a boost in their wages after having a child.
As the 2020 Democratic primary candidates march forward in their interminable bids for nomination, numerous candidates have proposed ways to alleviate this pain — mainly by targeting women through policies for universal day care and paid family leave. But above all, this new-but-shouldn’t-be idea of unsexing pregnancy should remind us that when it comes to family policy, it’s not enough just to address women. Any real policy has to include men, who are, it turns out, part of the family as well.
And it has to begin earlier and be thought of more holistically. It isn’t just women having fewer children — it’s families. Unsexing pregnancy isn’t a threat but part of a bigger solution.