Dinner on the Legal Construction of Sex Equality

The Costs of Reproduction: History and the Legal Construction of Sex Equality is a new article by Deborah Dinner, Washington University in St. Louis School of Law.  It appears in the Harvard Civil Rights- Civil Liberties Law Review (CR-CL), Vol. 46, 2011.  Here's the abstract:

Today, legal and political actors argue that sex equality does not require society to share the costs of pregnancy, childbirth, and childrearing with individual women and private families. Courts interpret the Pregnancy Discrimination Act of 1978 (“PDA”), amending Title VII of the Civil Rights Act of 1964, to prohibit only market-irrational discriminatory animus. Political pundits oppose paid parental-leave legislation as a mandate that unfairly subsidizes private reproductive choice by shifting its costs onto the larger public.

This Article uses novel historical research to deconstruct the boundaries between cost sharing and sex equality. I recover the redistributive dimensions of the vision for sex equality that legal feminists articulated from the 1960s through the 1980s. Legal feminists’ challenge to the family-wage system entailed efforts to redistribute the costs of reproduction between women and men within the home and between the family and society. The history of feminist mobilization, anti-feminist counter-mobilization, and norm evolution in law and policy, illustrates the overlap in the normative purpose and cost effects of antidiscrimination and cost-sharing mandates. To realize women’s right to social and economic independence, feminists pursued classic antidiscrimination mandates, the accommodation of pregnancy in the workplace, and affirmative social-welfare entitlements related to caregiving. All of these reforms, moreover, shifted the costs of reproduction from individual women to the larger society.

The history related in this Article holds significant implications for legal and political debates. The history suggests that courts adopt an artificially narrow perspective when they interpret the PDA to fall short of requiring structural change in the workplace. It also suggests that Congress might build upon an evolving commitment to cost sharing as a critical component of sex equality by augmenting the entitlements created by the Family and Medical Leave Act of 1993 (“FMLA”).