For half a century, constitutional sex equality doctrine has been combating harmful sex stereotypes by invalidating laws that treat women as caregivers and men as breadwinners. Yet decades after the constitutional sex equality revolution unsexed parenting roles, one area of parenting has escaped this doctrine’s exacting gaze: breastfeeding. Beginning in the 1990s in the wake of public health efforts to promote breastfeeding, a raft of laws were enacted, from insurance coverage mandates under the Affordable Care Act to workplace accommodations under the Fair Labor Standards Act, that provide substantial breastfeeding protections and benefits, but only to women. Although the sexed law of breastfeeding exists in stark contrast with the unsexed law of parenting, it has not been challenged or even noticed.
This Article makes visible the sexed law of breastfeeding, exposes the tension it creates in the law of sex equality, and considers how to resolve this tension. Courts, lawmakers, and commentators assume that breastfeeding entails only the physical fact of lactation, and thus likewise assume that it affects only women. As an initial matter, transgender men and nonbinary persons can lactate, and thus it is questionable whether even laws that regulate lactation should be sexed. Still further, breastfeeding—a method of nutrition for 85% of infants at birth and 60% of infants at six months—encompasses a host of carework that does not turn on lactation. Fathers can, for example, buy a breastpump, take a breastfeeding class, choose a lactation consultant, or feed a baby a bottle of breastmilk. Because much breastfeeding carework can be separated from sex, the legal assignment of this carework to women is premised in sex stereotypes. Sexed breastfeeding law thus wrongly pigeonholes women for care and men for career in just the way that sex equality law has long tried to counter in other areas of parenting.
After surfacing sex equality law’s distinct treatment of breastfeeding, this Article considers how to cohere the law’s treatment of breastfeeding with its treatment of the rest of parenting. The answer can be found in existing Supreme Court precedents teaching that sex-based rules must be carefully scrutinized, even in the presence of relevant physical sex differences, to ensure that the reliance on sex extends no further than necessary. Applying this jurisprudence to breastfeeding can promote not only equality between men and women, but also the equality of lesbian, gay, transgender, and nonbinary parents.
GW Paper Series
Minnesota Law Review, Vol. 107, Forthcoming 2022