Of Cheerios and Sequined Heels
A Response to Darren Rosenblum’s Unsex Mothering: Toward a Culture of New Parenting
As I sit down to write, I do so amid the ruckus of my four-year-old daughter crying. I took away her chocolate Hanukkah gelt because she ate beyond the allotted amount. In her world, I am “Mama” and she is not happy with me at the moment.
She has another parent, known as “Mommy.” To the untrained ear, these monikers may sound like content-neutral alternatives, but in my children’s lexicon, a mama is a butch, or what a kid with two moms has instead of a dad. The root denotes bio-female, but the suffix connotes masculinity. As her older brother put it some years ago, while audibly mastering the gender map of his environment, “Mama is my daddy.”
He did not mean that I work in the market while his other mom keeps house. He did not mean that his other mom handles the feeding, bathing, and bedtime reading, while I sit remotely behind a newspaper and smoke a pipe. We are good, egalitarian lesbians who share the responsibilities and privileges of parenting. We also both participate full-time in the paid labor market. My son was not responding to labors performed or neglected, but to my styles of play, movement, and dress.
Darren Rosenblum’s proposed unsexing methodology “attack[ing] the linkage between biological sex . . . and sex roles” has obvious appeal to a girl like me or a guy like Rosenblum. (He rather gives himself away in the final paragraph’s reference to “Dorothy in Oz” and “click[ing] our sequined heels.”) Many butch women and femme men might well have struggled to establish social and work lives in which they could relax, only to be thrust back into the heteronormative mainstream when they have children. I can tell you from experience, even in a progressive and tolerant community, it is stressful being the butch at the kindergarten parents’ breakfast. I suppose, in Rosenblum’s vocabulary, it is due to the “sexedness.” Rosenblum does our sexed world the great service of refusing to accept it as such.
Looking for analytical escape, one might easily flee toward androgyny as a solution. A cold and determined intellect grinding away could probably scrape sex down to a dry skeleton, so that nothing much attaches to it. As Rosenblum carefully observes, however, androgyny tends toward the puritanical, depriving us of play space for power and frilly things.
Rosenblum is more tempered, confining his discussion to parental leave from the paid labor force. He astutely discerns how different facially neutral leave structures variously incentivize allocations of responsibility within a two-parent family. His analysis makes utter sense and does much to explain the limited impact of the Family and Medical Leave Act here in the United States.
Like the rest of us, however, Rosenblum faces a vocabulary challenge. The terms “sex” and “gender” are so endlessly contested, that it is difficult for any analysis to rest on them.
“Gender” comes from the same root as genus, as in “type” or “category.” As the term “sex,” derived from Middle French and at one time meaning genitalia, came to refer to erotic acts as well as to the categories male and female, “gender” started to come into increasing usage to refer to the latter. Famously, Ruth Bader Ginsburg helped to usher in the shift after her secretary urged that when the male judges reading her briefs for the ACLU Women’s Rights Project saw the word “sex” all over the page, they probably were not thinking about equality. Ever since, case law and casebook editors have widely employed the term “gender” rather than “sex” to refer to the biological categories of male and female.
Second wave feminists, however, had a more substantive differentiation in mind. They favored the term “gender” as a way of contending with the problem as Simone de Beauvoir posited it: that biology was destiny. According to their strategy, “sex” referred to a biological fact of maleness or femaleness, while “gender” indicated secondary characteristics not necessarily linked to biology. “Gender” was not merely a polite way to say sex but also referred to masculinity or femininity, so that a man could be feminine and a woman could be masculine, and any assumption to the contrary constituted gender stereotyping. The ideology of this moment was that while sex is biological, gender is a cluster of socially constructed expectations or stereotypes and therefore can be targeted for change using law reform.
This conceptual framing can be credited with significant legal advances, but it also came with costs. The postmodern feminists gave us some tools for seeing that. Katherine Franke argued that it was a mistake to disaggregate sex from gender because by using gender to refer to a set of culturally constructed traits, the necessary implication was that sex by contrast was natural, or pre-political. The effect of the conceptual split was to place the categories of male and female beyond the reach of critical inquiry and therefore much of the most insidious sex discrimination beyond the reach of antidiscrimination law. As postmodernists such as Franke and Judith Butler point out, genital, hormonal, and chromosomal variation in the human species need not be reduced to two categories, but the scientific discourse of binary sex is powerful. Butler and Franke wanted us to see that the distinction between sex and gender, developed in order to overcome the problem of biology as destiny, may inadvertently have conceded a good deal of territory.
One might conclude, then, that the best course is to converge the terms. Some pro-sex feminists, however, might oppose convergence, though on entirely separate grounds. Gayle Rubin complained in the 1980s about the term “sex” standing for both erotic acts and the categories male and female. She contended that the dual meaning of sex privileged heterosexual intercourse and rendered it the defining act of the participants, making us male and female. Rubin urged that structural/dominance feminists such as Catharine MacKinnon should confine themselves to the problem of gender inequality and resist the impulse to make eroticism the focal point of their analysis. Rubin therefore effectively favored a disaggregation of the terms, not as a way of distinguishing male from masculine and female from feminine, but rather as a way of conceptually segregating erotic acts from the problem of gender-based inequality.
More recently, the transgender constituency has gained a bit of political footing, and that constituency has its own political investment in these terms. This group is far from monolithic in terms of their identities or politics, but some organizations and writers have urged that gender is a core feature of identity, manifested through expressions such as dress and demeanor, and should be socially and legally respected regardless of whether that identity lines up conventionally with one’s assigned birth sex. Unlike gender, which lives in the ethereal mind, sex lives in the physical body, and can be changed using hormones and surgery. As Franke has observed, where for the second wave feminists, sex was stable and gender malleable, for the trans constituency (or at least a vocal segment thereof), gender is more or less fixed while sex is mutable. The use of the term “gender” as code for women is anathema to that group because it not only erases their political presence but also seems to gesture to the politics of gender as a domain of stereotyping rather than core identity.
The meanings of these terms are politically and historically contingent. The desexing that Rosenblum advocates has a lineage that can be traced to de Beauvoir’s “biology is destiny” formulation and to the second wavers’ efforts to decouple biological sex from secondary traits collected under the banner of gender. There is, however, an interesting difference between the sex/gender split and desexing as Rosenblum has defined it. Unlike many of his foremothers, Rosenblum has tempered his decoupling impulse, explicitly declining to advocate “unsex[ing] parenting entirely” because of the threat that such an undertaking might pose to playful differentiation. By limiting himself to parental leave policies but declining to advocate androgyny, Rosenblum introduces an altogether different split between our laboring selves, including both market and familial labor, and our sexual selves—the selves that are at “play.”
Gay rights advocates, particularly those who have prioritized marriage and parenting related rights, have promoted a sharp discursive divide between our family selves and our sexual selves. It was not an inexplicable move. Antigay forces routinely sexualize gay and lesbian would-be spouses and parents in an effort to delegitimize their claims to rights associated with the family. Against such attacks, gay rights advocates have minimized their sexuality, offering the most chaste and intentionally bland images of gay people imaginable to make the case for our suitability for family life. In my view, this has been a tragic concession to the moralists.
Rosenblum is after the very opposite: by siphoning off our sexual/playful selves and protecting that from his desexing project, he seeks to protect sex. What is especially notable is that he acknowledges that to protect this part of ourselves, he not only might have to confine his desexing project to parenting, but also he might not even be able to extend it to all parenting. In this, he implicitly acknowledges that we are our whole selves in the parenting enterprise and that the sex/family distinction is a false and dangerous one.
By zeroing in on family leave from the employment market, Rosenblum’s analysis also does admirable damage to the family/market dichotomy. Following his fem(me)-crit instincts, he makes evident the inextricability of these dual facets of life for purposes of any intelligent distributive analysis.
Still, we have this new split between work and play, and the act of slicing up a concept (such as parent) and subjecting one side to a new analytic feels risky. It is patently undesirable for limited notions about bio-sex to interfere with the parenting roles we play, but what interests will be left behind?
Meanwhile, Darren, bubbala, you seem like a wonderful mother—not just because you are there to wipe away the soggy Cheerio, but also because of your sequined heels. Hold them fast.
 Professor of Law, Northeastern University School of Law. Many thanks to Aziza Ahmed for feedback on earlier drafts and Aneesha Gandhi for research assistance.
 Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57, 60 (2012).
 Id. at 116.
 Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. (2006).
 6 The Oxford English Dictionary 428 (2d ed. 1989).
 15 The Oxford English Dictionary 107-110 (2d ed. 1989).
 Stephanie Francis Ward, Family Ties, 96 A.B.A. J. 36, 41 (2010).
 See Simone de Beauvoir, The Second Sex, 267 (H. M. Parshley ed. & trans., Alfred A. Knopf 1971) (1949); see also Judith Butler, Gender Trouble: Feminism and the Subversion of Identity, 6 (1990) (attributing the conceptual split to the need to address the problem identified by de Beauvoir).
 See Katherine M. Franke, The Central Mistake of Sex Discrimination Law: The Disaggregation of Sex from Gender, 144 U. Pa. L. Rev. 1, 98 (1995).
 See id. at 38–39; Butler, supra note 8, at 6–7.
 See Gayle Rubin, Thinking Sex: Note for a Radical Theory of the Politics of Sexuality, Pleasure and Danger: Exploring Female Sexuality 267, 307 (Carole S. Vance ed., 1984).
 See id.
 See id. at 308–09.
 See, e.g., Paisley Currah, The Transgender Rights Imaginary, 4 Geo. J. Gender & L. 705, 715 (2003).
 See Franke, supra note 9, at 35.
 See de Beauvoir, supra note 8.
 Rosenblum, supra note 2, at 80.
 For a more elaborate version of this argument, see Libby Adler, The Gay Agenda, 16 Mich. J. Gender & L. 147, 161–72 (2009).
 See generally Frances Olsen, The Family and the Market: A Study of Ideology and Legal Reform, 96 Harv. L. Rev. 1497 (1983).
 Rosenblum, supra note 2, at 58.