Delinking Sex/Gender from Parenting

Darren Rosenblum, Unsex Mothering: Toward a New Culture of Parenting, 35 Harv. J.L. & Gender 57 (2012), available at SSRN.

As we all know, the question of whether sex/gender should serve as an eligibility criterion in the distribution of marriage licenses has received a vast amount of attention over the last two decades. Although the issue of whether sex/gender is a crucial element of parenting has received less attention, it is no less important. In this exciting and path-breaking article, Darren Rosenblum calls for the unsexing of motherhood and fatherhood—that is, for the severing of parental categories from biological sex. In Rosenblum’s perfect world, anyone—regardless of sex—can be a mother or a father. The decoupling of parenting from sex will “ultimately eliminate the presumption that the primary parent is the mother, in which case a parent of any sex could claim to be the primary parent.” He adds that “[p]arents would be expected to provide nurturing, support, structure, and discipline to children, but they would not need to divide these and other elements of childcare based on parental biosex.”

As Rosenblum perceptively explains, a powerful interplay of institutions and norms help to link parenting categories with sex. One of these is the market. The fact that men dominate the market sphere reinforces cultural stereotypes about women’s “natural” capabilities in the domestic sphere. And natural understandings of motherhood place great importance on genetics, gestation, and lactation, seemingly ignoring the fact that it is possible for women—those who become parents through adoption or surrogacy, for example—to be mothers in the absence of one or more of these biological factors.

After detailing the powerful forces that contribute to the sexing of parenting, Rosenblum cautions that legal rules promoting thin gender neutrality will not lead to its unsexing. Here Rosenblum astutely uses the Family and Medical Leave Act (FMLA) as an example. On its face, that statute offers male and female parents the same unpaid leave opportunities. This gender neutrality is thin, however, because it leaves in place powerful social default rules that discourage men from taking parental leaves and place greater childcare responsibilities on women. The FMLA also does not account for market forces that reward male paid work, which create further disincentives for men to take unpaid leaves.

Rosenblum contrasts the FMLA’s thin gender neutrality with the thick neutrality of Sweden’s parental leave policy. Under that policy, two employed parents are entitled, as a unit, to up to eighteen months of parental leave. But in order to receive the maximum amount of leave time, each parent is required to take two months of leave. After that, couples are free to apportion between themselves the remaining time as they deem best. The policy also requires that the leave be paid (at 80% of salary for the first three hundred and ninety days and at a flat rate after that). In addition, the policy allows both parents to be on leave simultaneously and permits both to return to work part-time until the child reaches the age of eight. And, finally, the Swedish government provides a comprehensive child daycare system, which helps parents with the transition back to work.

Like the FMLA, the Swedish leave policy is gender neutral. But as Rosenblum persuasively argues, only the Swedish leave rules account for the market and social forces that make it less likely that men will take parental leave from work. Creating incentives for both parents to take time off from work in order to care for children has led the vast majority of new Swedish fathers to take parental leave.

One of the reasons why this is a superb article is that Rosenblum is fully cognizant that the unsexing of parenthood will not come about through legal rules that fail to account for the economic, social, and cultural forces which promote gendered parenting. Indeed, thin gender neutrality’s failure— which in my view includes not only the FMLA, but also the repudiation of the tender years doctrine and the notion that only men should be responsible for alimony and child support—to degender parenting is striking. Our laws may promote gender neutrality in parenting, but our culture lags far behind.

As Rosenblum points out, much of the unsexing of parenthood is taking place in family forms outside of the traditional married heterosexual household. Single individuals and same-sex couples, for example, parent in ways that combine the traditional maternal and paternal roles. Indeed, the empirical literature suggests that lesbian parent couples are able to divide the work outside and inside the home more equitably than married heterosexual parents. It is likely that this is in large part because same-sex couples are not able to fall back on default rules that assign parental roles and responsibilities according to gender.

Although the challenges in degendering parenthood are daunting, this article helps us understand the nature of those challenges while offering a compelling vision of how to overcome them.  I do not know if it will be possible to fully unsex parenting in our lifetimes. But after reading Rosenblum’s article, I am more persuaded than ever that it is crucial that we try.

 
 
Discussion

1 comment
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    I read stuff like this and it drives me from being a skeptical agnostic about gay marriage to a strong opponent. Is this where gay marriage advocates want to take us? To degendered parenting? No more Mom and Dad? If that’s the case, let’s stop the bus right here. Let’s make sure the Supreme Court knows this is the next stop, too. Please be sure to submit an amicus brief to the Court pointing out the desirability of degendered parenting. If any of the opponents of gay marriage were to argue that gay marriage is paving the way for degendered parenting, they would be mocked as hysterics. Who knew?