Unsex Mothering Responses: Theodore Andrew Myhre

 

Meaning Matters: Hypersex Parenting

A Response to Darren Rosenblum’s Unsex Mothering: Toward a Culture of New Parenting

Theodore Andrew Myhre[1]

Darren Rosenblum wants to change the world of parenting, and he wants to use law to do it.[2]  His comparative project explores how legal regimes governing mothering should attempt to “unsex” their statutory language in order to break the linkage between biological sex, sex roles, and parenting so that any person is allowed to perform any caretaking role relating to children.[3]  He addresses important questions about the realities of parenting, how parenting is represented in statutory language, and how social change can be influenced by legal mandates.[4]  The wonderful thing about Unsex Mothering: Toward a New Culture of Parenting is the substantial way in which it raises and addresses important issues regarding gender and sex roles by focusing on statutory language.  However, the article encounters a struggle arising from the way that it theorizes the problem.  It focuses on the change in statutory language rather than on a change in the understanding or meaning of the statutory language.  A theoretical shift toward semiotics, language games, and reception theory may add to the success of his project.

In his introduction to Unsex Mothering, Professor Rosenblum writes, “Removing biosex from ‘mothering’ and ‘fathering’ may ultimately eliminate some of the meaning of these terms, but its elimination is less important than undoing the biosex link.”[5]  This unfortunate byproduct—that “unsexing ” results in a lessening of meaning—creates a problem for statutory interpretation.  For example, Unsex Mothering focuses, among other things, on two statutes governing parental leave, the United States’ Family and Medical Leave Act (“FMLA”)[6] and Sweden’s Parental Leave Act (“PLA”).[7]  Both statutes use gender-neutral language.  But one statute, the FMLA, fails to break the gender/biosex link and the other statute, the PLA, succeeds in undermining such presumptions of parenting.[8]  As a critical project, “unsexing” does not fully explain why one statute fails and the other succeeds when there is no differential in the form of the language used—both used gender-neutral language.  Instead, the data points suggest that the differential in the meaning of the statutory language, not its form, is what determines the success of the parental leave statute in terms of social engineering through inclusive legislation. 

This is not to say that the form of a word is unimportant.  Word choice matters.  Statutory language uses different levels of abstraction.[9]  For example, “parent” can mean either “mother” or “father,” so it has a higher level of abstraction.  Thus, raising the level of abstraction produces a word choice that is broad enough to allow the meaning of statutory language to multiply or intensify in a way that includes many different types of parents, parenting styles, and family structures.  In this context, such an intensification of meaning in statutory language produces “hypersexed” words rather than “unsexed” words.  Hypersexing creates a legal understanding of “parent” and “parenting” that may include multiple sex and gender roles without presuming or mandating a biosex or fixed gender basis for caretaking.[10]  This could help to eliminate the presumption of dominant sex or gender roles by producing a more inclusive, egalitarian, and nondiscriminatory rule of law as it is interpreted and applied in a specific society and culture.

Laws are perhaps one of the most powerful language games we can play.[11]  The use of language within a culture generates meanings and helps to configure and reconfigure social power and the experience of individual realities.[12]  Changing the explicit language used in a statute does not necessarily change how any person experiences the world unless the legislation is mediated in such a way that the idea represented by the change in language is substantially meaningful to the participants in the interpretation and application of the law.[13]

Such a system can effectively be viewed through the lens of semiotics, which, at its most basic, proposes that sign-systems are composed by a signifier (the word), a signified (the mental concept), and a referent (the real object).[14]  Applying this approach to the project of Unsex Mothering would allow us to explore how the meaning of “parent” functions as part of a semiotic system. 

In order to understand what is happening at the level of mental concepts or signifieds, it may be necessary to employ Wittgenstein’s ideas of language games, which, in this case, may be understood as a language game between writers of the law and interpreters of the law.[15]  Writers of the law invoke statutory interpretation issues centered on authorial intent, i.e. legislative intent.[16]  Interpreters of the law invoke theories of reader reception.[17]  This multilayered theoretical approach helps to explain why the PLA appears to be successful and why the FMLA appears to be unsuccessful in terms of breaking the link between biosex/gender and parental leave.  The PLA’s success ultimately appears to result from an effective intensification of meaning.     

In a semiotic system, speakers and interpreters generate meaning within a specific social and cultural context.[18]  The form of the word is merely a sign or vessel for conveying the uses and understandings of experiences of a reality mediated through language.[19]  To the extent that people in our society and culture possess identities constituted by sex, gender, sexuality, class, race, age, ideology, employment, relationship status, etc., then the language used in our statutes would be better served by raising the level of abstraction in the terminology so that the significance of the words may include the meaning generated by the wondrous variety of people living and engaging in language games within our society and culture.  Statutory language could then signify the entire list of recognized qualities that characterize those who may function as parents or caretakers.  Thus, hypersexing “parenting” seems a more culturally immediate way to accrue multiple meanings within the mental concept of parenting.  It creates a more transparent connection between the practice of parenting, the use of parenting, and the multiplicity of parents.

Given how socially and culturally specific “subjects” are in our individual construction and identities, it seems perhaps impossible at a theoretical level to fully unsex a statute without first unsexing the mental concepts that we use to mediate our linguistic experience of the world.  However, if we unsex our mental concepts, then we move farther away from the referents for parenting.  This would work against Professor Rosenburg’s ultimate goal of expanding the reality of parenting.  Accordingly, intensifying meaning within a more abstract term appears to be the more effective critical process. 

Thus, the critical project of Unsex Mothering may be more successful if the concept of unsexing does not target the elimination of sex and gender roles but rather targets the presumption of sex or gender roles explicitly articulated in statutory language.[20]  And in this context, intensifying the meanings of statutory language could help to eliminate the presumption a dominant sex or gender roles by producing a more inclusive, egalitarian, and nondiscriminatory rule of law as it is interpreted and applied in a specific society and culture. 


[1] Lecturer, University of Washington School of Law. J.D., Seattle University School of Law; M.A. in History, Boston College; M.A. in Modern European Intellectual History, Drew University; B.A., The Evergreen State College. This critique came about through engaged conversations with Darren Rosenblum, Kellye Testy, Peter Nicolas, Patricia Kuszler, Lisa Kelly, Mary Fan, Mary Hotchkiss, Mary Whisner, Kate O’Neill, Helen Anderson, and Russ Powell. The research assistance of Kate Marckworth and the Reference Office of the Gallagher Law Library was invaluable, as was the editorial assistance of Kelly Ruhlig and Kristi Jobson.

 

[2] Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57 (2012).

 

[3] Id. at 60–62.

 

[4] Id. at 59–63, 95–116.

 

[5] Id. at 60.

 

[6] Family and Medical Leave Act, 29 U.S.C. § 2601 et seq.

 

[7] Föräldraledighetslag (Svensk författningssamling [SFS] 1995:584) (Swed.), English translation of Parental Leave Act available at http://www.sweden.gov.se/content/1/c6/10/49/85/f16b785a.pdf; see also Rosenblum, supra note 2 at 108–114.

 

[8] Rosenblum, supra note 2 at 95–114. Unsex Mothering characterizes the United States’ FMLA as thin unsexing and Sweden’s PLA as thick unsexing, both of which are descriptive rather than explanatory.  In considering these statutes, it is not the form of the words that makes the difference.  It appears that the meaning of the words is what creates the more inclusive possibilities for parenting, and, therefore, it is the meaning of the statutory language that best indicates how a statute may be used.

 

[9] Adrian Vermeule, The Cycles of Statutory Interpretation, U. Chi. L. Rev. 149 (2001).

 

[10] For an excellent discussion of sex and a critique of binary opposition or dyads related to male/female, masculine/feminine, etc., see Judith Butler, Bodies That Matter: On The Discursive Limits of “Sex” (Routledge 1993); see also Judith Butler, Gender Trouble: Feminism and Subversion of Identity (Routledge 2010).  Butler asserts, in part, that viewing sexuality as merely binary suppresses the subversive multiplicity of sexuality in a way that disrupts heterosexual, reproductive, and medico-juridical hegemonies, such as legal discourse. Hence, under Butler’s approach, if “sex” or “sexuality” can be seen as multiple, then ideas of heterosexuality, reproductivity, gender, and biosex become more than merely binary within medical and legal discourses and the limits of meaning for sex or gender expand accordingly.

 

[11] See, e.g., Lou Wolcher, How Legal Language Works, 2 UNBOUND 91, 92 (2006).  Wolcher builds upon Wittgenstein’s distinction between the implicit rules that make up a system of language (a “language game” embedded in a “form of life”) and statements that are made, by means of the rules, within the system.  His article uses Heidegger’s idea of the hermeneutic circle to determine that the ultimate ground of the legal form of life is constituted by receiving linguistic signs.  Understanding how such signs are received requires exploring the distinction found in Wittgenstein’s philosophy of language between the magical and the logical views of language.  The magical view imagines that legal language must always “mean” something (following this view leads thought into obscurity, confusion, and occasionally even into absurdity).  The logical view of language focuses on different descriptive techniques (methods of comparison and methods of application) that people employ in various forms of life, including the multiple ways legal language is used by lawyers and judges.  For purposes of this critique, Wittgenstein’s language theories are crucial to understanding statutory language as linguistic signs within a semiotic system, whose meaning depends on use by players of the language game.

 

[12] See generally Michel Foucault, The Order of Things (Pantheon 1970); Michel Foucault, Discipline and Punish: The Birth of the Prison (Pantheon 1974); and Michel Foucault, Power/Knowledge: Selected Interviews and Other Writings, 1972-1977 (Collin Gordon ed., Pantheon 1980).  In moving from the idea of discourse as it relates to large bodies of knowledge (such as juridico-medical discourse) to the idea of how power within such discourse both positions and is internalized by individuals, the work of Michel Foucault is crucial to understanding the effect of discursive meaning and the possibilities for individual realities within the socio-culture context.

 

[13] See generally Juri Lotman, On the Semiosphere, 33 Sign System Studies 1, 205 (2005).  Lotman asserts that reality is always semiotically mediated in a way that models our world, so that the semiotic system and physical reality are so deeply entwined that their separation is only analytic and not experiential.

 

[14] For a general introduction to semiotics, see Daniel Chandler, Semiotics: The Basics (Routledge 2007); see also, Umberto Eco, Semiotics and the Philosophy of Language (Indiana University Press 1986) (asserting that individuals in a culture may have greater or lesser knowledge or access to “the cultural encyclopedia” of symbolic relationships and contents and that the use of available signs and symbols in cultural encoding and decoding is an issue of a person's “competence,” not a question about the sign system itself; see also Ferdinand de Saussure, Writings in General Linguistics (Oxford University Press 2006); Ferdinand de Saussure, Saussure’s Third Course of Lectures in General Linguistics (1910–1911) (Language and Communication series, vol. 12, E. Komatsu and R. Harris trans. and ed., Pergamon 1993); C.S. Peirce, The Essential Peirce, Vol. 2, (Peirce Edition Project  eds., Indiana University 1998) at 478 (positing that semiotic systems are comprised of sign, object, and interpretant).  For a summary of Peirce's contributions to semiotics, see J.J. Liszka, A General Introduction to the Semeiotic of C.S. Peirce (Indiana University Press 1996); T.L. Short, Peirce's Theory of Signs (Cambridge: Cambridge University Press 2007).

 

[15] See Roy Harris, Language, Saussure and Wittgenstein (Routledge 1988) (characterizing Saussure’s theory of semiotic systems as products of social interaction—as instruments through which human beings constitute and articulate their world, and justifiably arguing that Saussure’s view of language profoundly influenced developments in linguistics, philosophy, psychology, sociology and anthropology); see also Ludwig Wittgenstein, Philosophical Investigations I, §23 (MacMillan Company 1958) (suggesting that the term “language game” emphasizes the fact that the speaking of language is part of an activity—a “form of life.”).  For a feminist discussion of Wittgenstein’s ideas, see Susan Heckman, The Moral Language Game in Feminist Interpretations of Ludwig Wittgenstein 166 (Naomi Scheman and Peg O’Connor eds., Penn State University Press 2002).

 

[16] See William Eskridge, Jr. and Phillip Frickey, Statutory Interpretation as Practical Reasoning, Stan. L. Rev. 321 (1990). Within legal studies, intentionalism or originalism is a well establish albeit it minority approach to statutory and constitutional interpretation, which non-interpretivist have strongly criticized it based on a number of legitimate practical problems.  For an excellent discussion of these interpretive approaches, see Boris Bitker, Interpreting the Constitution: Is the Intent of the Framers Controlling? If not, what is? 19 Harv. J. L. & Pub. Pol’y, 1 (1990). Within literary theory, both psychoanalytic and Marxist critics relay on texts to demonstrate authorial intent be it conscious, unconscious, or embodying evidence of the author’s class, ideology, etc. See, e.g., Raymond Williams, Marxism and Literature (Oxford University Press 1977); see also Jacques Lacan, Ecrits (Norton 2006); Elizabeth Wright, Modern Psychoanalytic Criticism in Modern Literary Theory: A Comparative Introduction (London 1982).

 

[17] See, e.g., Hans Robert Jauss, Toward an Aesthetic of Reception (Timothy Bahti trans., University of Minnesota Press 1982); Stanley Fish, Is There a Text in This Class? The Authority of Interpretive Communities (Harvard Univ. Press 1980); Roland Barthes, Death of the Author in Image, Music, Text (Stephan Heath trans., Noonday Press 1977).

 

[18] See Harris, supra note 15.

 

[19] See Lotman, supra note 13; see also Wolcher, supra note 11.

 

[20] Unsex Mothering opens the possibility that these critical projects are complimentary when it states: “Unsex parenting would not mandate the elimination of sex or gender roles—as long as those roles do not presume biosex or fixed gender basis.” Rosenblum, supra note 2 at 83.   

 

 

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