Document Type

Article

Abstract

In this Article, I observe that “mothering” and “fathering” have been inappropriately tethered to biosex. “Mothering” should be unsexed as the primary parental relationship. “Fathering,” correspondingly, should be unsexed from its breadwinner status. In an ideal world, people now considered “mothers” and “fathers” would be “parents” first, a category that includes all forms of caretaking. One could even imagine an androgynous world in which parenting has no sexed subcategories, whether attached to biosex or not. I doubt our world is anywhere near that; I also wonder whether universal androgyny is a utopian ideal worth pursuing. I instead focus in this Article on unsexing the roles of “mother” and “father,” elevating them from biodeterminist brandings to chosen classifications or roles. 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. Liberated from biosex roles, a parent could define herself as “parent,” “mother,” or “father” with some fluidity. In Pregnant Man?: A Conversation, I described my own experience as a differently sexed mother/parent and the impact of my gender on parenting. Here, I promote a conception of parenting that embraces the fluidity of contemporary understandings of gender and the need for balancing roles within the family. Part I elaborates the ways in which legal and social norms configure parenting as a sexed endeavor. Part II argues that the solution to this problem is to unsex mothering, fathering, and parenting. Unwinding parenting from biosex roles creates a construction of family that is liberating for traditionally sexed women and men and holds potential for the equality of LGBT parents. Women’s economic equality efforts have tended to fail in part because of childcare; accordingly, their economic success largely depends on shifting men into family responsibilities. Part III shifts the frame to international and comparative law. International law fosters a sexed vision of parenting but also suggests ways to shift toward an unsexed future. After examining the international framework for parenting roles, Part III examines one public policy example of unsexed parenting, parental leave, using a comparative law analysis contrasting the U.S. Family and Medical Leave Act (FMLA) with Sweden’s Parental Leave Act. Parental leave is the perfect position from which to examine unsexing because it sits in the middle of the triad of corporate law, family law, and public law. In that sense, it evokes the challenges of intermediating among the normative and regulatory forces of these three legal frames. The Conclusion asserts that parenting is becoming more unsexed and that legal regimes governing parenting should encourage this development to promote fluidity in parenting roles.

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