Until Dobbs, most people in the pro-life movement were at home with the thing that makes life possible: noninterchangeable men and women. They were thus wary of the anti-sex-discrimination regime ushered in by the 1964 Civil Rights Act, then amplified by the Pregnancy Discrimination Act (1978) and the Pregnant Worker’s Fairness Act (2022). They sensed that this regime was homogenizing, undermining the conditions of a rich common life, if not of life itself.
After Dobbs, however, some pro-life voices began to advocate for that regime on the basis that it was pro-life.[1] Republican lawmakers and Catholic feminists called for paid family leave.[2] Pro-family advocates released “Post-Roe, pro-family” statements calling for affordable childcare.[3] Most striking of all was the sudden replacement of “motherhood” and “fatherhood,” with unisex lexicon of “care” and “parents.”
For some, the endorsement is more than a strategy for keeping babies alive; it is a matter of principle. Anti-sex-discrimination law, it is argued, appreciates the sexually distinct body, especially the one that bears the disproportionate burden in childbearing. It does this by appreciating the bad ideas people have about it, especially the “stereotype” that women in their childbearing years are not as committed to professional work as men, then by prohibiting all deeds (and words) still captive to the supposed lack of women’s professional commitment. This is good, it is argued, because it prevents women from being “reduced to” their reproductive potential,[4] thus allowing them free reign, as unique individuals, to develop their gifts and capacities in any field of interest. In that sense, while it remedies the current historical situation, where work and home are regrettably divided, anti-sex-discrimination law is also the latest stage in human progress, all former stages being considered “discriminatory.”
Current pro-life feminists are making their bed with the “equity feminists” in the National Women’s Party (founded in 1917) who came out of hibernation in 1964 when segregationists offered them an occasion to overturn decades of pro-family policy. In a last-minute attempt to kill (or dilute) the Civil Rights Act of 1964, southern Democrat Congressman Howard Smith of Virginia suggested—apparently in jest—that “sex” be added to the wording of Title VII, which hitherto would prohibit employers from discriminating only on the basis of race, color, religion, or national origin. The proposal was met with whimsical support by Smith’s segregationist colleagues.[5] Up until then, advocates of the Civil Rights Act understood Title VII to be chiefly about the removal of obstacles that kept black men from gainful employment, and, thus, from providing for their families. When the addition of “sex” was proposed, northern and western Democrats opposed the amendment, citing opposition from the Women’s Bureau of the US Department of Labor and the American Association of University Women. Its inclusion would jeopardize the primary purpose of the legislation. And it would jeopardize the sex difference itself, which was a different kind of difference, one that could not be homogenized like that between the races. For a moment, it looked like the segregationists had successfully troubled the Civil Rights Act: until equity feminists in Congress—Martha Griffiths from Michigan, Katharine St. George from New York, and Catherine May from Washington, among others— took the suggestion in earnest and urged support for Smith’s amendment, to his apparent surprise. From this unlikely coalition, the Civil Rights Act was passed in the form with which we are now all familiar: an employer may not “limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual because of such individual’s race, color, religion, sex, or national origin.”[6] Notwithstanding this history, we are now to read into anti-sex-discrimination law an appreciation of the sex difference, especially the female one, with its disproportionate burden.[7]
In reality, it is only a temporary appreciation since anti-sex-discrimination law aims to reproportion the disproportion. Much like handicapping in sports, it takes into account the supposed disadvantage, then compensates for it so that women can stay in the race. The Ginsburg opinion of United States v. Virginia exemplifies this logic.[8] Laws against sex discrimination would “celebrate the inherent physical difference” between the sexes by dismissing its relevance to military preparedness and morale, then by lowering the physical fitness standards of prestigious military institutions such as Virginia Military Institute so that women could still “qualify” to train alongside men.[9]
In fact, the Pregnant Workers Fairness Act treats pregnancy as a disability that can be overcome in the “near future.”[10] Employers are to be neutral on whether new mothers even take leave. The short three months given by the Family and Medical Leave Act (1993)—hardly a sufficient amount of time for mothers and their newborns—says it all.[11] As Catherine Pakaluk states in Hannah’s Children, the weight of this and all such legislation is toward preventing women from gaining the habits of the heart that would have them prioritize motherhood.[12] It means to instill an attachment to the workforce.[13]
Current anti-sex-discrimination law is ultimately sexually homogenizing. Even when it “celebrates the inherent biological differences”—relative to physical fitness or pregnancy—the point is to overcome the “disability.” And now, after Bostock v. Clayton County, where Justice Gorsuch downgraded the “textual” meaning of the word “sex” in the Civil Rights Act to below-the-belt anatomy, detached from the man or woman who has it,[14] we can expect the “celebrated biological differences” to collapse legally, under the weight of the “gender” above the belt. For if we can disable the male biology of the “female” swimmer so that “she” can swim more slowly—like a girl—why not “cure” the biological “disability” of the female employee, so that she can be more able to work, like men, by outsourcing pregnancy itself ... or just eliminating it? Indeed, the Equal Employment Opportunity Commission recently proposed a rule for the implementation of the Pregnant Workers Fairness Act that would require employers to give leave to pregnant employees to do just that, abortion being “related” to pregnancy.[15] Regardless of the original intent of the law, it is the logical development of its spirit (if not its letter), for a disability that must be compensated for may also be cured. Indeed, given the options, we can expect employers to prefer paying for the cure.
The anti-sex-discrimination regime discriminates unjustly
For all the talk of “anti-discrimination,” current policies discriminate unjustly against actual human beings in favor of a disembodied, counterfactual “ideal.”
These policies, that is, discriminate against actual women. On the sexist assumption that women’s tendencies to “lean out” of the workforce (in the most progressive countries, no less)[16] are still nothing but the effects of “arbitrary stereotypes” (never the inclination of women themselves), women must be pushed along relentlessly by the cognoscenti toward the only correct goal: continuous and fifty-fifty participation in the workforce. Paradoxically, they also discriminate against women who snag high-ranking jobs, for it is always suspected that they were second-best, chosen simply because they were women.
Importantly, the law discriminates against the actual (bothersome) child, who needs quantity time with his mother—to coin a phrase. It favors the “easy” institutionalized child. Paid family leave goes hand in hand with “access to quality child-care.”[17]
The law discriminates against the actual home, that locus of human formation and hospitality, favoring instead the “bedroom community” made up of shift-working parents and their managed children.
The law discriminates against the actual workplace—even whole fields—which must now be organized around disembodied “ideal” employees. Employers, heads of professional schools and organizations, must pretend not to notice that actual women “lean out.” They must, accordingly, organize their offices, schools, and fields pretending not to know what they know, with ever more certitude: that workplaces will be constantly disorganized and understaffed, because of what actual women do.[18] Or they must live in a workplace that is not so disorganized, but ought to be, since the leaning-in colleagues have left their four-month-old babies at the “Child Development Center.” They must not so much as suggest that this arrangement is not good for the well-being of their children, lest they be sued for “sexual discrimination.”[19]
In short, anti-sex-discrimination law requires society at large to discriminate against the actual, and favor the abstract legal fiction, or live as outlaws.
The case for just discrimination
Who, though, could be for discrimination? The very distinction (discrimen) we are talking about could. The one that makes our existence possible! Conception, pregnancy, and birth all discriminate. Men have an indispensable role in the generation of life; but only women get pregnant. For them, generation is internal and time-consuming. And the “discrimination” doesn’t end with birth. As Erica Komisar shows in Being There,[20] mothers are primed to remain attached to their newborns in a direct, bodily, way[21] for at least three years. The mother naturally “discriminates” in favor of her child, her attention and energy riveted to the child in a way not remotely comparable to the father’s.[22] The child, in turn, “discriminates” in favor of the mother. The other side of this mutual privilege is, of course, the disproportionate burden on the woman. It is the mother who “ ‘pays’ directly for this shared generation, which literally absorbs the energies of her body and soul,” said John Paul II.[23] The father has his disproportionate burdens, too; but they are also his privileges.
The discrimination of pregnancy and motherhood is highest in human animals, since their young take about a year to attain what higher mammals have on the first day: their species-specific stance and form of communication. As the Swiss biologist, Adolf Portmann argues, human babies are born “immature” because they are rational animals who must strive freely to acquire, in the light of day, what other mammals are born with, ready-made, in the darkness of the womb. That they must mature from within the “social uterus” of the family, is because they are dependent rational animals.[24] Indeed, so much does the child need these primary social bonds, it would learn neither to stand nor to speak, were it left in the wild. This means that the human child must be carried for a year. This rational dependency explains the sudden appearance, at the human level, of fathers in the life of mothers and their young. Human babies need a lot. Above all, they need to be introduced to the truth of things. That is exactly what their “primary educators” do when they provide for the child’s material needs together, as well as through their give-and-take coordination of distinct tasks, one doing what the other cannot. They show their children the unity-in-difference that stands at the origin of all things. Indeed, it was the universal practice of pre-industrial society to extend the division of labor between men and women well beyond natural necessities, to enhance the mutual dependence of non-interchangeable spouses, and thus their unity-in-difference.[25] As Ivan Illich said: “Outside industrial societies, unisex work is the rare exception, if it exists at all. Few things can be done by women and also by men.”[26] In other words, sexual difference extended all the way up—“discriminatingly”—to include a way of being and acting in the home and in society that distinguished in order to unite. Motherhood and fatherhood were not merely below-the-belt aspects of life on top of which are stacked the others[27] but modes in which the whole of human nature—physical, moral, and spiritual—as well as individual talents and capacities, were lived, as a communion in difference.[28]
The new pro-life feminism agrees with most of this. It rejects the “one body fits all” feminism that would suppress the female body and abort its contents. It appreciates the female body and wants to support it, so that it might bear its disproportionate burden. Most importantly, it hails the centuries-long trajectory of thought about the dignity of women (represented by Christine de Pizan, Stein, von Le Fort, Undset, John Paul II, Christopher Lasch) that gave us an embodied idea of equality, one that looks at both kinds of bodies as equally positive.
This is good. We have lived for too long under the subordinationist (sexist) account of the female body as a “defective male.” The idea that the sexes are equally human in their distinction, not despite it, is a real acquisition. For that we can thank modern biology and the Catholic intellectual tradition, thinking out the implications of divine revelation concerning God Himself. Indeed, it is on the strength of Christian revelation that the medieval Christine de Pizan “discriminated”well beyond pregnancy and birth, seeing no contradiction between the equal dignity of the woman and the millennia-old tradition of dividing work between men and women:
Just as a wise and prudent lord organizes his household into different domains and operates a strict division of labour amongst his workforce, so God created man and woman to serve Him in different ways and to help and comfort one another, according to a similar division of labour. To this end, He endowed each sex with the qualities and attributes which they need to perform the tasks for which they are cut out.[29]
It is because the two distinct manners of being bodily were two (equally) positive manners of possessing the same humanity (equally) that there was no reason to diminish the distinction, making the sexes socially interchangeable.
But that is exactly what the current advocates of the anti-sex-discrimination regime do. They put the brakes on a novel Christian insight when they forget the female body only months after it delivers a baby, turning mothers and fathers into functionally equivalent “parents” and “caregivers.” Indeed, it plays right into the hand of disembodied equality and its sexist assumptions.
Celebrating the inherent differences all the way
Once it is recognized that male and female bodies are equal in their distinction and the part the woman plays in the life of the child is cleansed from every hint of disadvantage, disability, and inferiority, there is no need to reproportion things in order to equalize the woman. The incentive, rather, will be to dig into the distinction and carry it up into the whole of life, beginning with the family, then on to the society of which the family is the first vital cell. The different manners of generating, expecting, and bringing a child into the world will be taken not merely as the first (short) chapter of life, but the genesis of all subsequent chapters, the arche that abides throughout the whole (long) story. Thinking in these terms, we would want society to promote the difference—not cure it. We would want it to discriminate, justly, by giving young mothers incentives to help them stay with their young children longer and helping fathers to step up, to do what the mothers cannot do.
Catholic Social Doctrine
As it happens, that sort of just discrimination has been proposed and tried. It was proposed by the Catholic Church in its social doctrine, which appeared as part of a response to the dramatic changes in the organization of labor wrought by the industrial revolution.[30] No serious treatment of our question about men, women, children, and work can fail to deal with the migration of productive labor out of the home and local community. Ivan Illich,[31] Christopher Lasch,[32] Allan Carlson,[33] Wendell Berry,[34] and now Mary Harrington,[35] all speak to this lamentable divorce. It impoverished the home generally, and women in particular. For now they had to migrate out of their homes in their husbands’ wake to be absorbed by the world of wage-labor, or be left in dull, lonely homes to consume commodities,[36] invent make-work,[37] and hover excessively over children.[38] One does not overlook the greatness of a mother who “builds a dwelling for the immortal soul” (Cardinal Mindszenty),[39] or the wideness of her work as the one who “tells her child about the universe” (Chesterton),[40] by saying that women lost something significant when industry migrated out of the home and neighborhood. As Dorothy Sayers noted, the work of spinning, dyeing, weaving, catering, brewing, distilling, preserving, pickling and bottling, bacon-curing, plus the management of landed estates, all women’s industries, done communally and integrated with child rearing for over 10,000 years,[41] were outsourced.[42] The traditional family of the 20th century, therefore, had become a shadow of its former self, losing above all its economic and political agency in the new liberal economy. Yet it was precisely in that context of regrettable choices that the Church opted for policies in favor of protecting young mothers from paid labor, on the assumption that they should be kept in close proximity to their young children, to, at the very least, breastfeed them, the last remaining form of home production.
At the center of this protection was the “family wage,” which discriminated in favor of wage-earning fathers. The doctrine dates to 1931[43] and was invoked in 1981 by John Paul II in Laborem exercens and then again, in 2003, in the Compendium of the Social Doctrine of the Church. Just recently (on March 8th of this year) it was affirmed overwhelmingly by the Irish who, rejecting the proposed “anti-discriminatory” language of “care,” voted to confirm the section of their 1937 Constitution that speaks about “mothers in the home” as so essential for the common good that they should “not be obliged by economic necessity to engage in labour to the neglect of their duties in the home.”[44]
Catholic social doctrine uses no sexless talk about “care,” nor about the child’s need for two (unspecified) parents—as in a recent book entitled Two-Parent Privilege.[45] It is mothers of young children who must be protected from the need to enter the workforce, thanks to fathers receiving the family wage, or in their absence, mothers receiving other social benefits.
The assumption that mothers specifically have their center of gravity in the household is a constant in Catholic social doctrine.[46] On that assumption, it enjoins society to “re-evaluate the mother’s role, the toil connected with it, and the need that children have for care, love, and affection.”[47] Notably, when Catholic social doctrine warns against (unjust) discrimination, it is discrimination against these women, the very opposite of current law.
It will redound to the credit of society to make it possible for a mother—without inhibiting her freedom, without psychological or practical discrimination, and without penalizing her as compared with other women—to devote herself to taking care of her children and educating them in accordance with their needs, which vary with age. Having to abandon these tasks in order to take up paid work outside the home is wrong from the point of view of the good of society and of the family when it contradicts these primary goals of the mission of a mother.[48]
Catholic social doctrine also speaks against “excluding [women] from jobs for which they are capable”[49] and in favor of the “access of women to public functions,”[50] “equal pay for equal work,” and “fairness in career advancements.”[51] But these statements are all qualified by “the requirements of the person and his or her forms of life, above all life in the home,” “taking into account the individual’s age and sex,” so that “women do not have to pay for their advancement by abandoning what is specific to them and at the expense of the family, in which women as mothers have an irreplaceable role.”[52] Then, of course, any meaningful notion of “equal work” should be able to recognize the career-length inequality between men and women in dedication to paid professional work.[53]
The whole weight of Catholic social doctrine assumes that work be conformed to “the primary goals of the mission of a mother.” We can presume, then, that women of young children don’t have the right to every kind of work, the kind that requires them to abandon “what is specific to them,” for example: military service, deep-sea fishing, and much of what anti-sex-discrimination law encourages them to do today.
The Maternalists
Similar proposals were also made and enacted by a group of influential—mostly Lutheran—women involved in the “Settlement House Movement,” which began in the 1880s.[54] Jane Addams, Julia Lathrop, Grace Abott, Katherine Lenroot, Florence Kelley, Frances Perkins, and Eleanor Roosevelt, among others, all promoted maternalist legislation to protect wage-earning women and children from overwork and exploitation and put into place programs and policies that had as their underlying goal to keep young mothers at home with their children (under the age of 16).[55] When the United States entered the First World War, they crafted a bill for soldiers ensuring that one-half of their pay would go directly to their wives. During the presidency of Franklin Delano Roosevelt (1933–1945), they helped ensure that the New Deal was mother-friendly. At the center of their agenda was the family wage, which was more understood than codified: men would be channeled into specific, usually higher-paying jobs or preferred for promotion, while mothers who lacked support from husbands would be granted a “mother’s pension.” The point was to prevent mothers (and children) from being pushed into paid labor and thereby absorbed by it and separated from each other (not to promote the “cult of domesticity”).[56] As Frances Perkins (Secretary of Labor from 1933 to 1945) said:
You take the mother of a large family, she may be able-bodied and all that, but we classify her as unemployable because if she works the children have got to go to an orphan asylum.[57]
Even when women were pulled into the workforce during the Second World War, Maternalists were able to obtain a directive that exempted mothers of young children from this sort of national service. When child-care programs were created, they sought to ensure that these would be discontinued when the emergency need was over.[58]
Maternalists thought in embodied terms and were, accordingly, averse to the vague and abstract talk of “equality” prevalent among the first wave feminists of their day, gathered in the National Women’s Party. Maternalists opposed their Equal Rights Amendment (in 1923) and were opposed by the feminists when they worked, hand in hand with the National Association of Manufacturers, to prevent passage of special labor legislation protecting mothers and potential mothers working in factories.[59] Maternalists triumphed for decades, right up until the last day of debate over the Civil Rights Act (1964) when “sex” was added to Title VII. Indeed, these were the same women who filled the US Department of Labor’s Women’s Bureau, which opposed the segregationists’ proposed amendment. After they lost this debate, the Equal Employment Opportunities Commission struck all their labor reforms protecting women from the books.[60] From that point what had been just discrimination between the sexes became unjust discrimination, and vice versa. Sixty years on from this momentous reversal, and we are unable to understand the work of the Maternalists except as internalized cultural misogyny.
Conclusion
The case for (just) sex discrimination has nothing to do with separating mothers from work (in a sealed-off domestic “sphere”). Pregnancy, motherhood, and homemaking are, of course, already work. But it is perfectly natural for women to engage in other economically productive and culturally generative work, paid or not, as has always been the case. It is rather an argument for work that is compatible with proximity to young children. This is what we should be working for.
Nor is the case for (just) sex discrimination against the involvement of fathers in the keeping of the home and the care of their children. It is, rather, an argument for their distinctive involvement in both. As it happens, fathers always have been involved, just differently: building, fixing, repairing, mending, roughhousing, going off to war, or to Jerusalem. And were the regrettable distance between economic life and the home to be shortened, there is no reason that mothers and fathers would be functional equivalents as “caregivers.” Assuming we really believe in the equal positivity of both bodies, there should be nothing disagreeable about that.
Naturally, given the current legal landscape, anyone who is thinking outside the current anti-sex-discrimination box is engaging in a thought experiment, not to mention an illegal one. But it is not nothing to liberate one’s mind. We don’t have to believe that it is a “stereotype” to say that the mother has an “irreplaceable role” in the home. Meanwhile, we can begin to think long-term.
But what to do now? Might not our circumstances justify the three-month paid family leaves and the outsourcing of “care”? Wendell Berry’s response is a good one: “Are we to assume that one may fittingly cease to be Blondie by becoming Dagwood?”[61] That is what “anti-sex-discrimination” effectively means. And it is worse today, now that “Blondie” can outsource or eliminate pregnancy, the very last form of home production, altogether.
Why not push more into reality, instead of away from it? In our current regrettable circumstances, that would mean erring on the side of the most vulnerable, sacrificing what must be sacrificed for them, while waiting to see what new economic realities might be generated, more in keeping with the economy of the home (the oiko-nomia). It could be an adventure much like the adventure parents undertook decades ago when impoverished educational options led them to go out on a limb to educate their children at home. That initially meant more isolation, for mothers in particular; but it ended up generating a whole new educational landscape, a new culture, and lots of company.
The adventure for mothers, in the case of work, will, of course, differ depending on how many children a woman has, when they started and stopped arriving, what level of education she has, the kind of work she wants to do and is capable of doing, and extended family resources. There will be many outliers (and employers who want to have them, regardless of the cost). But the emphasis, culturally and legally, should be on raising the next generation in a robust home, not warehousing it in pursuit of disembodied goals. For many women, their children, and their husbands, this would come as a relief. For others, it would mean sacrifice. But individual desires, talents, and capacities need to be subordinated to vocations. Indeed, everyone who has children sacrifices what he or she “wants to do.” But one thing they don’t sacrifice is work that’s worth doing: the building up of a whole culture of life, one that is at home with the very thing that makes life possible in the first place: sexually distinct, non interchangeable men and women—in short, the discriminating body.
Margaret Harper McCarthy is associate professor of theological anthropology at the Pontifical John Paul II Institute for studies on Marriage & Family.
Notes
See Erika Bachiochi, “Sex-Realist Feminism,” First Things, April 2023, www.firstthings.com/article/2023/04/ sex-realist-feminism. See also Erika Bachiochi, “Pursuing the Reunification of Home and Work,” The Compass Point, July 15, 2022, https://americancompass.org/pursuing-the-reuinification-of-home-and-work.
Adam Edelman, “Republicans in Michigan Embrace Family Leave in Wake of Near-Total Abortion Ban,” NBC, August 9, 2022, www.nbcnews.com/politics/2022-election/repub- licans-wisconsin-embrace-family-leave-wake-total-abortion-ban-rcna41953; Dana Bash and Abbie Sharpe, “Bipartisan Push for Family and Medical Leave,” CNN, February 26, 2023, www.cnn.com/2023/02/26/politics/paid-family-medical-leave-bice-houlahan/index.html. See also “What’s the State of Maternity Leave in the US Catholic Church? FemCatholic Investigates,” FemCatholic, March 25, 2022, www.femcatholic.com/post/paid-leave-report.
“Building a Post-Roe Future, A Joint Statement,” January 19, 2023, https://postroefuture.com.
Cf. Rachel Lu,“Woman, Defined,” Law and Liberty, January 19, 2023, https://lawliberty.org/woman-defined. Ivan Illich, Gender (New York: Pantheon, 1982), 3, 14, 20.
See Allan Carlson, The American Way: Family and Community in the Shaping of the American Identity (Wilmington, Delaware: ISI Books, 2003), 149–53. Carlson offers an account of the last-minute attempt by southern Democrats to downgrade the act, with the “killer amendment” (of “sex”) to Title VII. The suggestion was met with laughter, whimsical “support,” and “praise” by other Dixiecrats for such things as “making it possible for the white Christian woman to receive the same consideration for employment as the colored woman” (151).
Civil Rights Act of 1964, Title VII, Section 703(a)(2).
Anti-sex-discrimination law does have a carve-out feature that permits states to treat men and women differently in ways that it would never tolerate for racial categories. The basis should be strictly physical or “biological.” Thus, there can be sex-based fitness standards, sex-separated sports teams, and sex-separated housing (for privacy). Pregnancy would now be added to that, but only on the most minimal, reductively biologistic reading of what pregnancy—and motherhood—and children—are and require.
United States v. Virginia, 518 U.S. 515 (1996), https://supreme.justia.com/cases/federal/us/518/515.
Later, the Fourth Circuit Court of Appeals, citing Justice Ginsburg’s opinion, ruled in Bauer v. Lynch, 812 F.3d 340 (2016), that the FBI’s sex-normed physical fitness standards did not violate Title VII’s sex discrimination prohibition.
The PWFA concerns employees whose disability is temporary, and who therefore can perform the essential function in the near future: see www.eeoc.gov/statutes/ pregnant-workers-fairness-act.
US Department of Labor, “Family and Medical Leave Act,” www.dol.gov/agencies/whd/fmla.
Catherine Ruth Pakaluk, Hannah’s Children: The Women Quietly Defying the Birth Dearth (Washington, DC: Regnery Gateway, 2024), 341–42.
Olivia Beavers,“Ivanka Trump Makes Her Case for National Paid Family Leave Program,” The Hill, July 5, 2017, https://thehill.com/homenews/administration/340658-ivanka-trump- makes-her-case-for-a-national-paid-family-leave-program.
In his majority opinion in Bostock v. Clayton County, 590 U.S. (2020), Justice Gorsuch claims to take a “textualist” approach—considering only the written word—when he reads into the word “sex” the very ideology at play in the case he is meant to adjudicate, taking it to be a mere anatomical substrate indifferent to the one who has it as opposed to the phenomenon that distinguishes a man from a woman (whole and entire). On the basis of this “textual” reading of “sex,” therefore, Justice Gorsuch argued that it would be “discrimination” to treat a man who “identifies as” (and “is”) a woman, differently than a woman who “identifies” as a woman. As he wrote:
“take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”
It is important to see here the slippage between “identifying as” a woman and “traits and actions,” thus attaching the case to earlier cases about sex discrimination which concerned dress and behavior. In Bostock, on the contrary, the case concerned a man claiming to “be a woman,” demanding to wear the female uniform as a woman, not as a man defying “stereotypical dress” (https://supreme.justia.com/cases/federal/us/590/17-1618).
Justice James D. Blacklock of the Texas Supreme Court provided this withering judgment of the “textualism” in Bostock:
“Bostock’s textual analysis proceeds from moral and philosophical premises that were hardly imaginable in 1964. Like doctors who assume the Transgender Vision before telling us what is best for their pediatric patients, Bostock assumes the Transgender Vision before telling us what Title VII means. As Bostock sees it, a biological female who “identifies” as a woman shares a “trait or action” in common with a biological male who “identifies” as a woman.... To hire the biological female but fire the biological male because both identify as a woman is to discriminate against the biological male for being a biological male—in violation of Title VII, Bostock says. The unspoken philosophical assumption indispensable to this logic is that when a biological male “identifies” as a woman, something similar is happening as compared to when a biological female “identifies” as a woman.... From within the Traditional Vision, a male who believes he is a woman and a female who knows she is a woman could hardly be less similarly situated with respect to the matter.... Her perception of reality is true, and his is false. Bostock’s logic cannot stand if a person’s declaration of a transgender identity is understood as a misguided break from reality, as it was by nearly everyone in 1964—rather than as a revelation of reality, as it is by some people today. From within the Traditional Vision, an employer who hires a woman who correctly perceives her true sex but declines to hire a man who incorrectly perceives his true sex is in no sense discriminating against the man on the basis of sex. He is discriminating on the basis of whether the applicant correctly perceives reality, which is not a characteristic with which Title VII is concerned. (State of Texas v. Loe [2024], Justice Blacklock, joined by Justice Devine, concurring)”
Nancy Gunzenhauser Popper, “EEOC’s Proposed Regulation for Pregnant Workers Fairness Act Contemplates Abortion-RelatedAccommodations,” JD Supra, www.jdsupra.com/legalnews/eeoc-s-proposed-regulation-for-pregnant-4406567.
Maddy Savage, “The Paradox of Working in the World’s Most Equal Countries,” BBC, September 4, 2019, www.bbc.com/worklife/article/20190831-the-paradox-of-working-in-the-worlds-most-equal-countries.
Kate Bennett and Betsy Klein, “Senate Approves Ivanka Trump-Backed Paid Family Leave for Federal Employees,” CNN, December 19, 2019, www.cnn.com/2019/12/17/politics/ivanka-trump-federal-paid-family-leave/index.html.
The trend is found in medicine, in law, and in STEM fields. See the following: Ingrid Torjesen, “Most Female Doctors Return to Work Part Time after Maternity Leave, Analysis Shows,” The BMJ, March 10, 2022, www.bmj.com/content/bmj/376/bmj.o635.full.pdf; Jane M. Grant-Kels, “ Too Many Female Doctors Are Part-Time or Stop Working!?,” National Library of Medicine, www.ncbi.nlm.nih.gov/pmc/articles/PMC6997824; Center for Employability, Professional Legal Education & Research,“Lost to Law: Why Women Leave the Legal Profession,” Birmingham Law School, January 2022, http://epapers.bham.ac.uk/4114/2/CEPLER2022Lost.pdf; Carmen Astorne-Figari and Jamin D. Speer, “Drop Out, Switch Majors, or Persist? The Contrasting Gender Gaps,” ScienceDirect, www.sciencedirect.com/science/article/abs/pii/S0165176518300107; Susana González-Pérez, Miryam Martínez-Martínez, Virginia Rey-Paredes, and Eva Cifre, “I Am Done with This: Women Dropping out of Engineering Majors,” Frontiers in Psychology, August 11, 2022, www. frontiersin.org/articles/10.3389/fpsyg.2022.918439/full; Gabriela Ortiz-Martinez et al., “Analysis of the Retention of Women in Higher Education STEM Programs,” Humanities and Social Sciences Communications, March 11, 2023, www.nature.com/articles/s41599-023-01588-z; “Countries with Greater Gender Equality Have a Lower Percentage of Female STEM Graduates,” ScienceDaily, February 14, 2018, www.sciencedaily.com/releases/2018/02/180214150132.htm.
This happened to the president of Boston University, John Silver, when he was sued by a female professor who didn’t get tenure. She won and the university was ordered to give her tenure. See Helen Andrews, “Lean Out,” The American Mind, August 25, 2022, https://americanmind.org/features/rule-not-by-lies/lean-out/.
Erica Komisar, Being There: Why Prioritizing Motherhood in the First Three Years Matters (New York: TarcherPerigee, 2017).
Abigail Tucker, Mom Genes: Inside the New Science of our Ancient Maternal Instinct (New York: Gallery Books, 2021), 72–73, 80. Tucker states that oxytocin, which is made in the brain, does not only ready a woman for birth, but apparently also readies the brain for the maternal bond itself (73).
Ibid., 49–52.
Pope St. John Paul II, Mulieris Dignitatem (1988), 18.
Adolf Portmann, A Zoologist Looks at Humankind, trans. Judith Schaefer, 1st ed. (New York: Columbia University, 1990), 82–97.
Claude Lévi-Strauss, “The Family,” in Man, Culture, and Society, ed. Harry L. Shapiro (Oxford: Oxford University Press, 1956), 275–76.
Illich, Gender, 67.
Cf. Rachel Lu,“Woman, Defined,” Law and Liberty, January 19, 2023, https://lawliberty.org/woman-defined.
The Catechism of the Catholic Church, 2333; CDF, “On the Collaboration of Men and Women,” 8.
Christine de Pizan, The Book of the City of Ladies (New York: Penguin, 1999), I. 11 (29).
Pope Leo XIII, Rerum Novarum, 42: “Women ... are not suited for certain occupations; a woman is by nature fitted for home-work, and it is that which is best adapted at once to preserve her modesty and to promote the good bringing up of children and the well-being of the family.”
Illich, Gender.
Christopher Lasch, Women and the Common Life: Love, Marriage, and Feminism, ed. Elisabeth Lasch-Quinn (New York: W. W. Norton, 1997), 93–120.
Carlson, The American Way.
Wendell Berry, “Sex, Economy, Freedom, and Community,” in The Art of the Commonplace, (Emeryville, CA: Shoemaker &Hoard, 2002),159–181; and“The Body and the Earth,” in The Art of the Commonplace, 108–111.
Mary Harrington, Feminism Against Progress (Washington, DC: Regnery, 2023).
Ivan Illich discusses at length the transformation of the productive work of women to “shadow work” in the post industrial wage economy. See Gender, 45–60, particularly this passage:
“When a modern housewife goes to the market, picks up the eggs, drives them home in her car, takes the elevator to the seventh floor, turns on the stove, takes butter from the refrigerator, and fries the eggs, she adds value to the commodity with each one of these steps. This is not what her grandmother did. The latter looked for eggs in the chicken coop, cut a piece from the lard she had rendered, lit some wood her kids had gathered on the commons, and added the salt she had bought.... Both women prepared fried eggs, but only one uses a marketed commodity and highly capitalized production goods: car, elevator, electric appliances. The grandmother carries out women’s gender-specific tasks in creating subsistence; the new housewife must put up with the household burden of shadow work.” (49)
Germain Greer described it pointedly: “Children live their lives most fully at school, fathers at work. Mother is the dead heart of the family, spending father’s earnings on consumer goods to enhance the environment in which he eats, sleeps and watches television,” qtd. in Mary Harrington, Feminism Against Progress, 47–48.
In her introduction to her modern how-to book on housekeeping, New York lawyer Cheryl Mendelson notes that housekeeping books in the ’50s “commonly recommended a dusting regimen of astonishing rigor for middle-class homes,” dusting all the woodwork and furniture, including window frames, screens, and blinds, every day, something previously unheard of. See Home Comforts (New York: Scribner, 1999), 13.
Christopher Lasch, Women and the Common Life: Love, Marriage, and Feminism (New York: W. W. Norton, 1997), 93–120.
Joseph Mindszenty, The Mother, trans. Benedict P. Lenz (St. Paul, MN: Radio Replies, 1949).
G. K. Chesterton, What’s Wrong with the World (San Francisco: Ignatius, 1910), 94.
See Elizabeth Barber, Women’s Work: The First 20,000 Years: Women, Cloth, and Society in Early Times (New York: W. W. Norton, 1996).
Dorothy Sayers, Are Women Human? (Grand Rapids, MI: Eerdmans, 1971), 23–24.
Pope Pius XI, Quadragesimo Anno (1931).
Anna Visser, “Article 41.2 of the Constitution: Women in the Home,” L&RS Note, June 26, 2018, https://data.oireachtas.ie/ie/oireachtas/libraryResearch/2018/2018- 06-27_l-rs-note-article-41-2-of-the-constitution-women-in-the-home_en.pdf.
See Melissa Kearney’s The Two-Parent Privilege: How Americans Stopped Getting Married and Started Falling Behind (Chicago: University of Chicago Press, 2023).
Pius XI, Casti Cannubi (1930), 74–76; John Paul II, Laborem Exercens (1981), 19; John Paul II, Familiaris Consortio (1981), 24; John Paul II, Mulieris Dignitatem (1988), 18; John Paul II, Women: Teachers of Peace (1995), 6; John Paul II, Evangelium Vitae (1995), 99; CDF,“On the Collaboration of Men and Women” (2004), 13; The Compendium of the Social Doctrine of the Church, 251.
Laborem Exercens, 19. See also Familiaris Consortio, 23; CDF, “On the Collaboration of Men and Women, 13:“A just valuing of the work of women within the family is required.”
Laborem Exercens, 19.
Ibid.
Familiaris Consortio, 24.
Letter to Women, 4.
Laborem Exercens, 19.
Cf. John Tierney, “ The Misogyny Myth: Women Aren’t Discriminated Against in Twenty-First Century America—But Men Increasingly Are,” City Journal, Summer 2023, www.city-journal.org/article/the-misogyny-myth.
See Allan Carlson’s history of them in The American Way.
Between 1912 and 1927, Maternalists were influential in the creation of the Children’s Bureau (1912) and the Sheppard-Towner Act (1921), both of which aimed to “save mothers and babies” from the death rates at the time, through prenatal and infant care education (promoting, especially, breastfeeding); they established Mother’s Day as a national holiday (1914); they promoted the Smith-Lever Extension Act (1914) to train men in farming techniques and women in home economics; they sponsored the Smith-Hughes Vocational Training Act (1917) to provide training in the household arts for girls.
As Grace Abbot, chief of the Children’s Bureau (1921–1934) wrote: “The whole idea of mothers’ pension is that it should be enough to care for the children adequately, to keep the mother at home and thus to give some security in the home” (cited in Carlson, The American Way, 71).
Cited by Carlson, The American Way, 71.
Carlson, The American Way, 76.
See Carlson, The American Way, 58–59.
Carlson, The American Way, 153. The Equal Employment Opportunities Commission (EEOC), in the period from 1967 and 1971, “converted Title VII into a magna carta for female workers, grafting to it a set of rules and regulations that certainly could not have passed Congress in 1964, and perhaps not a decade later, either,” states J. E. Buckley (“Equal Pay in America,” in Barrie O. Pettman, ed., Equal Pay for Women: Progress and Problems in Seven Countries [Bradford, UK: MCB Books, 1975], 47).
Berry, “Feminism, the Body, and the Machine,” 69.