Paper – Unsexing Pregnancy

Fontana, David and Schoenbaum, Naomi, Unsexing Pregnancy (March 11, 2019). Columbia Law Review, Vol. 119, 2019. Available at SSRN: https://ssrn.com/abstract=3350592 “Because sex does not dictate the capacity to provide care in the home or work in the market, sex-equality law combats harmful sex stereotypes by eliminating statutes and regulations that assign these roles on the basis of sex. When it comes to pregnancy, though, courts and commentators alike chart a very different course. They assume that pregnancy is a biological event that is almost exclusively for women. Thus, equal protection jurisprudence accepts the legal assignment of carework during pregnancy to women, and a range of laws regulating pregnancy carework — from prenatal leave under the Family and Medical Leave Act to health benefits under the Affordable Care Act to employment protections under the Pregnancy Discrimination Act — apply only or mostly to women. Even though the sexed law of…

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