Tag Archives: Family Law

Windsor, Federalism, and the Future of Marriage Litigation

Mark Strasser*


In United States v. Windsor,[1] the United States Supreme Court struck down section 3 of the Defense of Marriage Act (DOMA).[2] Now that section 3 has been invalidated, section 2 of DOMA may also be challenged.[3] The constitutionality of DOMA section 2 was not before the Windsor Court, so the Court could not have been expected to address its validity directly. Nonetheless, the Windsor opinion provides surprisingly little express guidance with respect to whether section 2 also violates constitutional guarantees.[4] Further complicating any analysis of that section’s validity is that the section has not been authoritatively construed. The constitutionality of section 2 (and even its being subject to challenge) will depend greatly on its authoritative interpretation and, in addition, on a clear articulation of the constraints, if any, on the power of a state to refuse to recognize a marriage validly celebrated in a sister domicile. If section 2 is construed narrowly and is found not to afford states a power that they do not already possess, then it would seem immune from challenge; however, in that event, a key provision of several state mini-DOMAs will lose even the veneer of legality. Continue reading Windsor, Federalism, and the Future of Marriage Litigation

Unsex Mothering Responses: Kimberly Mutcherson

 

Unsexing Care: Beyond Gendered Parenting Terms

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

Kimberly Mutcherson[1]

One thing that can be expected from a formerly pregnant man is interesting commentary about the parenting experience that follows that pregnancy.  Professor Rosenblum’s piece, Unsex Mothering: Toward a New Culture of Parenting,[2] does not disappoint in this regard.  His reflections on unsexing mothering are provocative and engaging.  Given the stimulating nature of the topic and my general interest in seeing traditional gender roles complicated and dismantled in the interest of equality, I was surprised to find myself not totally convinced by the project.  Sympathetic though I am to Professor Rosenblum’s overall goal—finding  space for parenting that does not force parents into rigid and confining roles based on biosex—I found myself pinpointing gaps in his narrative that left with me significant questions.  By the end of his piece, I was concerned that his goal might be even more difficult to attain than one might think at first glance.

I am fascinated by Professor Rosenblum’s notion of unsexing motherhood specifically and unsexing parenthood in general.  As he notes, this project is particularly salient for families that already eschew traditional notions of gender and family, such as families headed by same-sex or transgender parents, yet there is also significant room for other families to benefit from such a shift.  Certainly, Professor Rosenblum is not the only man who identifies with the part of himself that mothers.  As I read his piece, I was reminded of a blog called Mommy With a Penis,[3] penned by a gay man raising two adopted children with his husband.  These men challenge an entrenched orthodoxy about what it means to be a mother and resist the notion that “mother” is a label that requires a particular biosex or gender identification.  No doubt, challenges of this sort have been and will continue to be critical to the diversification of family life.

Missing, however, from Professor Rosenblum’s narrative was any substantial discussion of the myriad ways in which “mother” and “mothering” are highly loaded terms whose perceived grant of power is not equally distributed.  He explains in his piece that responsibility for children is a driver of women’s second-class status at work and then notes that “[t]his split varies along constructions of race, culture, class and ethnicity—indeed motherhood and fatherhood differ along these axes.”[4]  Although he is clear that mothers and fathers do not exist in isolation, but rather are understood and constructed in a world in which demographic categories matter, throughout the piece, Professor Rosenblum seems to be primarily concerned with families of privilege.  When he writes about the rise of the “Grizzly Mama”[5] or the “opt-out” revolution,[6] he is writing about a subset of women, many of them white, for whom embracing the power of motherhood, such as it is, is in fact a choice.  This is a choice made within particular social constructs, but it is still more of a choice than is available to many women for whom mothering is, at least in part, a site of oppression, government intrusions on privacy, and denigration. 

Motherhood does not mean the same thing to all people, and its social meaning is different depending upon who mothers.  No doubt motherhood confers power on some for whom motherhood is freely chosen and who can exercise some control over how they mother.  For others, however, motherhood involves significant and intrusive state oversight of parenting choices, substantial economic hardship, and in some cases even violence.  That this is true suggests to me that Rosenblum’s story cannot simply end with the idea of mothering being unbound from gender.  For if the social construction of “mother” and capacity for mothering varies across race, class, sexual orientation, immigration status, marital status, and other categories of difference, it will surely differ across biosex as well, and perhaps in ways that Rosenblum does not anticipate and/or in ways that undermine the goals of an unsexing process.  To not grapple with the intersectional realities of motherhood, I fear, means that it is impossible or at least difficult to understand what would make a project of unsexing successful.

In a similar vein, I left the piece unconvinced that the goal should be to first unsex mothering and fathering, which Rosenblum argues “may lead toward the diminution of the terms’ distinctions, and may even serve as a precursor to unsexing parenting.”[7]  He goes on to suggest that unsexing “mother” and “father” might mean that these terms come “to carry less meaning than ‘parent,’ but that is a side effect rather than the principal purpose of unsexing mothering and fathering.”[8]  At this point, I found myself wondering why this should be the case.  For, it strikes me that an equally if not more powerful goal than creating space for people to mother no matter their biosex, a move that so many will blindly resist, is the goal of creating spaces in which men provide care.  In other words, the goal here need not be for men to call themselves mothers and women to call themselves fathers but for men to be thought of as eager and talented caretakers and for women to be free to reject such a role as natural and intuitive. 

The point to be made on a larger scale isn’t that men can “mother” as that term has been understood.  Rather, because I am unconvinced that women benefit in such a scheme as it remains premised on the idea that gender—represented by the use of the gender specific term “mother” rather than the gender neutral term “parent”—still matters when it comes to caretaking.  Continuing to use that gendered pronoun does not do enough work to discard the idea that womanhood is synonymous with the ability and desire to provide care.  Rosenblum makes this argument himself when he writes that ideally the unsexing of mothering “will eventually lead to a conception of ‘fathering’ and ‘parenting’ as legitimate caretaking.”[9]  This move does not first require continuing to privilege mothers and mothering, no matter the biosex of those assuming these labels, as the primary site of parenting.  Plus, I worry that continuing to use the categories of mother and father also reinforces the notion of primary parents and secondary parents.  This too, I fear, will too frequently mean that women, not men, no matter the title they embrace, will bear the brunt of caretaking responsibilities.

My resistance to the attempt to unsex mothering has both a theoretical and a practical component.  On the practical end, I have two concerns.  First, while it is clear that Rosenblum’s piece is about mothering as a practice, I found myself wondering whether he leaves any room for mothering and the term “mother” as simply descriptive terms.  In other words, if stripped of normative content, is there any harm in referring to a person who identifies as a woman as a mother and to a person who identifies as a man as a father?  If harm is not a given, then the problem is not so much the need to re-define certain words, but to create a different culture within which those words are deployed.  I can imagine a world in which we use the word mother not to conjure a particular parental role, but in a neutral fashion, and we imbue the word parent with the other important notions of caretaking that should rightly be shared among those who assume primary responsibility for a child’s upbringing.  Second, I worry about the stickiness of gender identification and the reality that most of the circumstances in which men are given or take on roles traditionally gendered as female are in places that are on the fringe, where assuming those roles is intended for comedy, or, more perniciously, to pillory women.  If I am right about this, then I am concerned that many men—perhaps most men, but particularly heterosexual men—will not see the potential for liberation in a world in which they too can be “mothers.”  This is not to say that there aren’t men like Professor Rosenblum who find strength in embracing the term mother, but I imagine substantially more resistance to that shift than one might find among men and women who believe that good parenting has no gender.

I am drawn in by Professor Rosenblum’s call for a new culture of parenting.  Like him, I am excited by the existing examples we have in a social, political, and legal context that suggest that while good parenting has substantial normative content, it is without a gender.  But his call for unsexing mothering left me pondering a children’s book called Are You My Mother?[10] in which a baby bird confronts a series of different animals and objects, including a cow and a piece of construction equipment, before happily stumbling upon his real mother, another bird who briefly left him in search of food.  I think that Rosenblum and I would agree that the end goal is not in the titles, but in the acts of care that we ask of all good parents and for which gender is irrelevant.


[1] Associate Professor of Law, Rutgers School of Law—Camden.

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

[3] Mommy with a Penis, http://mommywithapenis.blogspot.com/ (last visited February 3, 2012).

[4] Rosenblum, supra note 2, at 67.

[5] Id. at 72.

[6] Id. at 71.

[7] Id. at 79–80.

[8] Id. at 80.

[9] Id. at 83.

[10] P.D. Eastman, Are You My Mother? (1960).

 

Unsex Mothering Responses: Kellye Testy

She’s Not My Mother, She’s My Parent

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

Kellye Testy[1]

Professor Rosenblum is right, but my son got there first.  Michael had the idea of “unsexing motherhood” back in 1995.  I thought it was brilliant then and still do.  I have come to believe during the intervening sixteen years that unsexing mothering is also critical for the welfare of children and the progress of gender equality.  My kids come first—so, first, a little more about Michael, and then a little more about Rosenblum’s exciting article.[2]

Michael was small then.  His muscled little legs stuck straight out from the front seat of our 1991 Toyota Corolla, which he named “Silver Bullet.”  Maybe I focus on his size because now that he is 21 he fully takes up the legroom of any car’s front seat.  Maybe I focus on his size because I came to see how wise he was when he was such a little boy.  For whatever reason, that’s the first image that comes to mind when I think of the day his pre-school friend asked him about me, “Michael, is that your mom?” as the three of us drove off in the fall field trip caravan to see how apple cider is made.

His backseat friend might have asked the same question of anyone.  Kids like to know who they are with, and there’s a certain status in having your mom be one of the drivers on a school field trip.  More likely, the friend was a little puzzled because he had probably seen another woman drop Michael off at pre-school in the mornings and assumed she was Michael’s mom. 

His assumption was correct. Tracey had given birth to Michael five years earlier on September 26, 1990, with his sister, Alex, and his father, Gene, waiting anxiously to greet him.  Tracey is my partner; she and the kids and I had begun living together the previous fall.

I remember how quickly Michael responded to that question, “Is that your mom?”  Without pausing or turning his head, he replied, “No, she’s not my mother, she’s my parent.”  That either satisfied his friend or puzzled him into changing the subject, for in the next minute he was on to other topics, including whether I had any treats in the car and how long it would take to drive to the apple farm.  For Michael and his friend, this exchange was likely never revisited again—certainly not between them and likely not in either of their minds.  For me, it was one of those moments that altered forever how I thought about my personal and professional life.

It altered my professional life because at the time I was teaching a new course and writing about law, gender, and sexuality.  All of the materials we had covered about the conflation of gender and sexuality in law and culture suddenly took on new meaning.  As my students often say, I “got” it.  Michael’s answer to his friend amplified for me the thickly gendered roles of parenting and how those roles constrain both men and women.  Michael’s answer also amplified for me how narrow our law was in insisting on just two parents, and how deeply challenging same-sex parenting was to traditional notions of parenting—not only due to sexuality but also due to gender.

Michael’s answer also created a seismic shift in my personal life.  For the first time I realized that the fact that Michael already had a mother and father did not keep me from being a parent to him.  Indeed, his answer made clear that he thought of me as a parent already even though the law did not recognize me as one nor did I yet recognize myself as one.  This insight brought me both pleasure (he trusts me, I have a place in his life) and fear (could I measure up, did I want this commitment?).  I realized that I did not have to be his “mother” or his “father” to be his “parent.”  I could just be me, and indeed, to this day both kids refer to me as “my Kellye.”  “My Kellye,” a “parent,” neither “mother” nor “father.”  

Our family was fortunate that some years later the law recognized what we already knew:  our children had three parents.  I adopted the children with both their mother’s and their father’s consent in 2003, when Michael was 13 and his sister was 15.  At the proceeding, the judge asked each child whether they wanted me to adopt them legally.  Alex made a passionate speech about justice and equality; Michael, with head down and hands in his pockets, said only, “I don’t know what the big deal is, she’s always been my mother.” 

What had taken place in eight years to make me now his “mother” when at five he had been so clear that I was his “parent” but not his “mother”?  Arguably two things, both of which Professor Rosenblum understands.  One is that the intervening years had conditioned Michael and us into society’s expectation that a parent had to be one or the other—a mother or a father.  And since I was biologically a woman, he had two mothers.  The second change, though, was that during this period I also occupied a space in his life that mapped onto traditional “motherhood” more closely than “fatherhood.”  While I did play a lot of sports with him, I was also the primary parent in our house for many of the years of his early life when my partner practiced law at a big firm and I had more schedule flexibility as a professor.  I did most of the cooking, got them to and from school, made special “treat trays” at night during movies, was at home during school breaks, and generally have a strong nurturing (“mothering”) disposition to go along with all of those more specific tasks.  In other words, my role and my biology fit more closely with our culture’s sexed view of motherhood.

When I left being a professor to become a law school dean in 2004, I often felt that I had also left my role as a “mother.”  My work life made me a much less involved and present parent.  Did I become a father?  My role in many ways started to look much more like traditional notions of fatherhood: gone from early morning to late at night, clearly the “bread winner,” limited involvement in school and home activities, etc.  I often wondered if I had been in this role earlier in the kids’ lives whether they would have come to think of me as their “mom.”  Probably—for exactly the reasons Professor Rosenblum points out: motherhood belongs to women. 

I am sure that many men were and are doing far more “mothering” of their children that has not been and is unlikely to be recognized any time soon.  While I agree that it would be best for our children and society to unlink parenting from gender, Professor Rosenblum’s well-founded argument will have an uphill battle.  As many have noted, gender roles run deep and are fiercely policed in our world.  Moreover, when sexism has denied and taken so much from women, what incentive is there to let go of one of the places where female superiority is often recognized—mothering?  In the short term, that is a hard question to answer.  In the longer term, of course, Professor Rosenblum is right: sex roles imprison us all. 

While I am not optimistic that Professor Rosenblum’s words will have much impact, I do think that his life will.  I hope he appreciates how transformative his everyday acts of parenting are: in ways large and small, he and his partner are unsexing motherhood every day.  He may not be his child’s mother, but he is her parent.  And that is all that matters.


[1] Dean and James W. Mifflin University Professor of Law, University of Washington School of Law.

 

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

 

 

 

Unsex Mothering Responses: Elizabeth M. Schneider

 

The Conundrums of Unsexing Parenting

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

Elizabeth M. Schneider[1]

Darren Rosenblum’s interesting and provocative article, Unsexing Mothering: Toward A New Culture of Parenting,[2] raised many issues for me, personally and intellectually.  As a long-time feminist legal activist and biological mother who has argued for, cared deeply about, experienced, and observed many attempts at egalitarian parenting, the idea of a new “culture of parenting” is intriguing.

Rosenblum writes from the perspective of a new parent in a same-sex marriage.  He starts with his own experience of being in the world with his daughter and social responses that view him as inadequate because he is not the baby’s “mother.”  Reading between the lines, Rosenblum wishes in some sense to be the baby’s “mother” (also true in his prior article, Pregnant Man,[3] poignantly describing the surrogacy process which led to his daughter’s birth), so he can experience social legitimacy as a (or the) “primary parent.”  But he also wants to “unsex” mothering so that there will be a greater fluidity of parenting roles for all parents.  These are issues which feminist legal scholars and activists have struggled with for a long time both in heterosexual and same-sex relationships.

I see this article in its historical context—part of a long process of different cultural phases dealing with unequal sex roles in parenting, starting, as Rosenblum describes, with Frontiero[4] and its progeny in the 1970s. Early cases that established parental leave—like Danielson v. Bd. of Higher Educ.,[5] brought by a father who wanted that opportunity, which I worked on at the Center for Constitutional Rights as a law student—were important.  Despite many victories for parental leave, men in general did not actually take leave for many complex reasons, including ones that Rosenblum discusses.  Many men in heterosexual couples simply did not want to assume substantial parental responsibility—not just on leave but also within the ongoing relationship.  In a sense, I think many younger women today in opposite-sex couples have given up on aspirations of equality in parenting (or at least that is what I hear from students and others I know in this generation).  This is one aspect of the “new maternalism” that Naomi Mezey and Nina Pillard describe.[6]  Here, Darren’s discussion of the operation of the Swedish system of parental leave is useful and instructive.

There are many obstacles to unsexing mothering, including not only “biosex” but deep cultural conditioning and socialization that is historically rooted but continues in all of us.  This includes not just parenting, but caretaking more broadly.  Women are trained to be caretakers, not just mothers of children, but for others.  I don’t want to overstate this, but in many opposite-sex couples, the woman is caretaking for elderly parents or parents of the partner, other family members, ill siblings or friends as well.  Many men simply don’t want to (or don’t know how to) take on caretaking responsibility for others.  Martha Fineman’s move from the “neutered mother”[7] to her recent work on vulnerability and the human condition[8] tells that story.  It is also true that while mothering may be critical to many women’s identities, mothering is also a loaded place of enormous blame, huge risk, and self sacrifice that is experienced differently by women in different situations, as I detail in my book Battered Women and Feminist Lawmaking.[9]  And then there is male privilege.  How do all of these factors operate differently in same-sex, or transgender relationships?  Are there differences in relationships of gay men, lesbians or transgender individuals?  How do race, class, ethnicity and age (just for some other factors) impact these experiences?  As Rosenblum wants to be considered a “mother,” do others want to be considered “fathers”?  Hard to know, I think.  But there is no question that Rosenblum has opened a conversation about the ways in which same-sex marriage and/or parenting by gay men can open the possibility of more fluid gender roles in parenting.  I am delighted to be part of this ongoing conversation.


[1] Rose L. Hoffer Professor of Law, Brooklyn Law School.

 

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

 

[3] Darren Rosenblum, Noa Ben-Asher, Mary Ann Case, Elizabeth Emens, Berta E. Hern­andez-Truyol, Vivan M. Gutierrez, Lisa C. Ikemoto, Angela Onwuachi-Willig, Jacob Willig-Onwuachi, Kimberly Mutcherson, Peter Siegelman, & Beth Jones, Pregnant Man?: A Conversation, 22 Yale L.J. & Feminism 207 (2010).

 

[4] Frontiero v. Richardson, 411 U.S. 677 (1973).

 

[5] 358 F. Supp. 22 (S.D.N.Y. 1972).

 

[6] Naomi Mezey & Cornelia Nina Pillard, Against the New Maternalism, 18 Mich. J. Gender & L. __ (forthcoming 2012).

 

[7] Martha Fineman, The Neutered Mother, The Sexual Family, and Other Twentieth Century Tragedies (1995).

 

[8] Martha Fineman, The Vulnerable Subject: Anchoring Equality in the Human Condition, 20 Yale L.J. & Feminism 1 (2008).

 

[9] Elizabeth Schneider, Battered Women & Feminist Lawmaking (2000). 

 

 

Unsex Mothering Responses: Beth Jones

 

Un-Sexing Single Mother Parenting of Boys

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

Beth Jones

Rosenblum’s article, Unsex Mothering,[1] applies in some ways to every different type of parenting.  As a single mother of twin eleven-year-old boys, I personally relate most to the portions regarding single parents and non-traditional parenting.  When I was not a single parent, I was married to my children’s father while my mother also lived with us.  I feel incredibly lucky to have had my mother be a stand-in parent rather than simply a grandparent.  When I was learning to do everything necessary for my children, she was there with her experience and insight whenever I needed it.  I can’t count the ways my mother helped me, from day-to-day chores to advice and emotional support.  To her credit, my mother never tried to force me to parent “her” way, and my children quickly learned what behavioral differences were expected with each of us. 

Primarily, I have been a single parent.  I became one when my children were just under one-year-old.  Being the youngest of four girls, I had no experience with children, especially boys.  I have frequently been described as an over-analyzer, and there were many topics Rosenblum discussed that I also contemplated while planning my parenting style.  I was raised almost exclusively by a single mother, and while my children’s father has joint custody, it has always been important to me that my children feel entirely complete and balanced when with me.  I decided very early to play what I considered both the “mother” and “father” roles.  While I thought of it not as “unsexing” but more as “both-parenting,” I think it equates to something similar. 

Living in Oklahoma, there is no shortage of societal norms that are expected to be followed.  While I disagree with many of them, I use these biased ideas—girls and boys only behaving the way their sex dictates, Christianity being the only widely accepted religion—to help my children not only learn to coexist with all types of people, but to show them that while people may be closed-minded and sometimes hurtful, it doesn’t mean those same people don’t care deeply for others or aren’t trying to live how they feel is best for them.  As a parent, I think that teaching children equality shouldn’t include references to sex or gender unless the situation has already included it in the issue.  For example, I would not tell my sons that they could not have something because it was intended for girls, but if a classmate picks on them for liking pink or doing something considered feminine, we discuss the likely background of that statement, why it shouldn’t affect my sons’ interests or opinions, and how to address the situation in the future, if necessary.  I try to remove the emotion from these issues when feelings and self-respect might be hurt and help my children analyze the situation objectively, recognizing that the offending child’s own home life and parental influence led them in that direction.  As a result, they have learned to stand up for themselves without being unnecessarily hurtful to the offending child. 

I also agree with Rosenblum’s assessment that, “children may benefit from new people engaging in childcare while they maintain their connection to adults who are former partners of a parent.”[2]  While a parent may dissolve her personal relationships at any time, her decision doesn’t have to dictate when a child should terminate a relationship with that person.  Many parents don’t consider the impact another person or family will have on their children, or that their feelings are just as invested in this new person as the parent’s—especially if those people mysteriously disappear one day.  My children maintain friendships with someone now with whom I haven’t had a relationship in over six years.  They enjoy spending time with him on occasion, and they feel secure in knowing that their relationship with him can continue without my involvement.  My hope is that by helping my children see the personality behind each person rather than relying on superficial labels, they will naturally look into a person’s character as they mature.  I won’t call it the end result, as my children are only half grown, but the current result is that my children are comfortable with all ages and types of people, can converse with adults or with children on respectively different levels, and know when to show appropriate respect and how to stand up for themselves without pushing their beliefs on others.  If they should choose to become parents later in life, I would not be surprised if they practice unsexed parenting themselves rather than traditional father roles.


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

 

[2] Id. at 86.

 

 

Unsex Mothering Responses: Katharine Silbaugh

Unsexing the End of Men

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

Katharine Silbaugh[1]

Darren Rosenblum’s wonderfully engaging case in Unsex Mothering: Toward a New Culture of Parenting,[2] pulls the reader into what has to be an unobjectionable argument that biosex and motherhood need to be delinked.  If the logic is as follows, who could argue?: (1) mother is the nurturer when there are role divisions, and there usually are; (2) men sometimes play the nuturing role, increasingly so; (3) men perhaps especially play that role where all of a child’s parents are biosex men.  Rosenblum’s own story intertwines with law and policy delineating mothering and fathering in a way that exposes the descriptive inadequacy of the legal concept “mother.”

I kept wondering, as I read the article, how to put it into dialogue with the “end of men” anxiety gripping popular media of late.[3]  That anxiety, seemingly born out of men’s higher unemployment rates during the recent “Man-cession”[4] extends beyond unemployment concerns to reinvigorated concerns over men’s role in families.  Consider, for example, Newsweek’s recent report, entitled I Don’t, on a Pew survey finding women less interested in marriage than in prior surveys.[5]  Or consider the Atlantic Magazine’s celebration of non-marriage for women entitled All the Single Ladies.[6]  These stories and many others move the story of men’s unemployment rates directly into line with their diminished marriageability. 

Much of the popular media has called on men to reinvent themselves, but it founders when describing the way forward.  Should men become more feminine?  Setting aside the counter-literature that counsels men to reclaim a heartier masculinity, the mainstream end-of-men literature does not ask men to become more feminine.  It does, however, ask them to be flexible enough to incorporate the skills that are said to be fueling women’s success.  In particular, it invites men to perform women’s tasks—change diapers, cook, get advanced degrees.  But when held up beside Rosenblum’s notion of men who mother, the popular media’s adaptation of masculinity isn’t a recognizable relative.  It might be better characterized as modified fathering than the unsexed mothering that Rosenblum advocates.

Reading Rosenblum’s piece drives home how oddly absent gay men are from the end-of-men narrative.  The central media articles, The Atlantic’s End of Men[7] and Newsweek’s Man Up!,[8] don’t discuss gay men at all.  How odd; aren’t gay men both a substantial cultural presence and a widely understood challenge to the map of conventional gender roles?  We can only speculate about their puzzling absence from major splashy stories about upending sex roles.  Could it result from the (damaging) stereotype that gay men are so financially successful that the man-cession does not reach them?  Or is it that media attraction to this topic returns forever to the tiring battle of the sexes model for understanding the operation of gender in society?  Maybe gay men are absent from these stories because they’re actually stories about women—women winning—dressed as stories about men’s troubles.

Rosenblum’s piece suggests a third possibility for the seeming absence of gay men from the man-cession media coverage: a gay man who is mothering, as Rosenblum sees it, isn’t humbled by the forces of change into performing a woman’s role.  To the contrary, his performance of motherhood reflects a tremendous accomplishment in his own eyes, given the extra effort that has gone into becoming a parent.  Rosenblum isn’t in mourning; his biosex male mother is not neutered, to invoke Martha Fineman’s iconic term for a post-formal equality female parent.[9] While end-of-men commentators live somewhere between coaxing men into progress and mocking them for their haplessness, Rosenblum is asking for the respect that’s due to an evolution that’s off those scales.  In drawing attention to what a post-biosex mother can be, Rosenblum exposes the limited courage or vision within the cultural narrative around the end-of-men.

Surely the implications of gay male absence from the end-of-men narrative could be better addressed by Rosenblum himself, but a few thoughts come to mind as conversation starters.  First, the impending fluidity in roles imagined by the mainstream media differs in some ways from Rosenblum’s unsexing.  The mainstream media’s vision has a man turning some breadwinning over to women and taking up some traditionally feminine parenting task.  But at that point, he would not be mothering as Rosenblum conceives it.  He would be cross-dressing, and uncomfortably, like the men in the famous cross-dressing comedies Tootsie and Bosom Buddies, and the current flash-in-the-pan that arose directly from this man-cession, Work It.  Taking on female roles isn’t subversive in today’s media narrative.  It isn’t a celebration, and it isn’t a challenge to the straightjacket of masculinity. It’s just a sign of how far we’ve fallen.

In addition, Rosenblum’s unsexing has, at least secondarily, the goal of improving the difficult role navigation in the labor market for women who mother.  Rosenblum sees creative possibility from unsexing breadwinning and mothering, but his perspective on the way women are confined in the marketplace by gender roles is unrecognizable in the end-of-men narrative.  For Rosenblum, women as breadwinners are still constrained and suffer in the workforce because of that constraint.  But much of the end-of-men narrative rushes past women’s workforce constraint, marshaling some counter-cultural data points to completely wash away the gendered construction of the labor market.  But even crediting the complication that men’s greater unemployment has introduced into discussions of gender in the labor market, it is an additional layer in need of comprehension and analysis, not a blank slate that ungenders the labor market.

Finally, Rosenblum’s article exposes how underdeveloped the end-of-men narrative is at this moment.  That narrative caricatures men as pathetic, two-dimensional, permanent adolescents, while embracing every stereotype of female hypercompetence thought attractive to high social capital women who have the feeling that they are the true boss of the men at work and at home.  To sell that story, the cultural narrative must ignore contrary evidence, whether it is about constraints women experience in the labor market, the experience of gay and other biosex men mothering, or anything else that unsexes.  I look forward to the time when Rosenblum’s cultural story complicates and develops this picture.


[1] Professor of Law and Law Alumni Scholar, Boston University School of Law.

 

 

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

 

 

[3] Hanna Rosin, The End of Men, The Atlantic Magazine, July/August 2010; http://www.theatlantic.com/magazine/archive/2010/07/the-end-of-men/8135/ (last visited February 3, 2012); Andrew Romano and Tony Dokoupil, Men’s Lib, The Daily Beast, September 20, 2010; http://www.thedailybeast.com/newsweek/2010/09/20/why-we-need-to-reimagine-masculinity.html (last visited February 3, 2012).

 

 

[4] Daniel Bukszpan, Economy: The Man-cession and the He-covery, USA Today, January 29, 2012; http://www.usatoday.com/money/economy/story/2012-01-29/cnbc-mancession/52826370/1 (last visited February 3, 2012).

 

 

[5] Jessica Bennett, ‘I Don’t: The Case Against Marriage, The Daily Beast, June 11, 2010; http://www.thedailybeast.com/newsweek/2010/06/11/i-don-t.html (last visited February 3, 2012).

 

 

[6] Kate Bolick, All the Single Ladies, The Atlantic Magazine, November 2011; http://www.theatlantic.com/magazine/archive/2011/11/all-the-single-ladies/8654/?single_page=true (last visited February 3, 2012).

 

 

[7] Hanna Rosin, The End of Men, supra note 3.

 

 

[8] Andrew Romano and Tony Dokoupil, Men’s Lib, Newsweek, September 27, 2010, at 42.

 

 

[9] Martha Fineman, The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies (1995).

 

 

 

 

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.