David B. Cruz, Heterosexual Reproductive Imperatives

• Publication year: 2007

HETEROSEXUAL REPRODUCTIVE IMPERATIVES†

David B. Cruz^*

INTRODUCTION

This Article began as the second annual Mary C. Dunlap Memorial Lecture on Sex, Gender, and Social Justice, which I was deeply honored to deliver at the University of California, Boalt Hall School of Law in February 2006. As I recounted there, Mary was a very good fighter, a superb trial attorney, and, eventually, a Supreme Court advocate. Her U.S. Supreme Court brief in the case of Richmond Unified School District v. Sonja Lynn Berg was exemplary.¹

In that case, Sonja Berg was the victim of a school district's double bind. She was subjected to mandatory pregnancy leave (despite her physician's assurance that she was capable of work), and yet simultaneously denied use of her earned disability leave. Mary understood this treatment to be unlawful sex discrimination under Title VII, and her brief was trenchant. After recounting the background of the school district's policies, Mary concluded: "These facts evidence petitioners' overarching purpose to discriminate against certain women employees, by manipulating the terms and conditions of their employment to the detriment of their economic equality and human liberty, under the pretext of protecting these women, their offspring, and their students."²She demolished the testimony of one of the school district's witnesses as "gross sex-stereotyping . . . of pregnant women as doddering, irrational fools."³Moreover, although the district refused to let pregnant women teachers use accumulated sick leave for their actual disability,⁴district policy provided that "'[p]aternity leave of one . . . day may be granted the male employee without loss of pay during or after the confinement of his wife.'"⁵"This 'have-a-cigar' approach to the economics of childbirth," in Mary's pithy phrasing, underscored that the district's "denial of earned sick pay to pregnant employees . . . [was] founded upon nothing but an impermissibly sex- discriminatory view of fathers as breadwinners and mothers as economic dependents . . . ."⁶And, Mary rejected the defendant's argument that pregnancy was not treated as a disability because it was a natural condition and not an illness or an injury.⁷

The school district's policy was an example of an ideologically driven rule with inegalitarian effects. It discriminated against women, and it did so in the service of an ideological, gendered, naturalized view of pregnancy and childrearing-that is, of the processes of procreation and reproduction of individuals and society. Some people in contemporary U.S. society appear to adhere to such ideological, gendered, and naturalized views of pregnancy and childrearing. The species and society must be reproduced, this is naturally and properly done only by women and men acting together, and women, queer, and transfolk should just recognize the primitive truth of that and willingly bear the burdens of laws designed to reinforce this natural reality.⁸As discussed below, this is precisely the sort of gendered ideology that has been deployed-and is still at work today-in courts and legal scholarship to limit the reproductive autonomy of women, to deny equal marriage rights to same-sex couples, and to constrain the circumstances under which government will recognize the lived gender of transsexual or transgendered persons. These gendered ideologies should give the overlapping groups of women, lesbigay people, and transgendered persons a common cause to fight for social justice and to embrace each other's justice claims, both in court and in the broader political arena.

Part I of this Article addresses ideologies of heterosexual reproduction in perhaps their most obvious context-women's rights to reproductive autonomy. Part II then examines the deployment of heterosexual reproductive imperatives (to attempt) to defeat the claims of same-sex couples to equal marriage rights. Part III considers the role of ideologies of heterosexual reproduction in the context of claims to legal recognition of their gender advanced by transpersons.

I. HETEROSEXUAL REPRODUCTIVE IMPERATIVES, ACT I: NATURAL, INEVITABLE FEMALE REPRODUCTION

This Part traces ideologies of naturalized heterosexual reproduction in the first of three contexts, identifying such heterosexual reproductive imperatives as important set pieces in dramas of life and law. What I mean here by ideology might be best described as an imperfect Weltanschauung or

"systematic and totalized world view."⁹The relevant worldviews are imperfect in the sense of not necessarily being completely systematic and totalized. As Alan Hunt properly observes, "Consistent world views may exist, but they must be treated as special or exceptional cases."¹⁰"[A]n ideology is not a unitary entity. It draws its power from its ability to connect and combine diverse mental elements (concepts, ideas, etc.) into combinations that influence and structure the perception and cognition of social agents."¹¹"[I]deologies . . . select, sort, order, and reorder the elements of thought."¹²

With that understanding in mind, this Part tracks ideologies of women as natural, inevitable reproducers from nineteenth century manifestations in constitutional jurisprudence about women's rights and roles through more modern incarnations, particularly in the context of women's claims to autonomy rights with respect to their reproductive capacity and roles. As will become clear, it is the content and effects of the ideologies that are troubling, not simply the fact that law is being animated by ideologies-a circumstance that may well be inevitable.

Let me start with the role of ideologies of heterosexual reproduction and their (perhaps too obvious) relation to women's reproductive rights. Frequently undergirding opposition to women's reproductive rights has been a normative, ideological vision of women as naturally destined to self-sacrifice, to bear and to raise children for men and for society.¹³We can see this in

Justice Bradley's infamous concurrence in Bradwell v. Illinois in 1873.¹⁴

While agreeing with the Court that Illinois did not violate the Constitution when it barred women from practicing law, Bradley's opinion trumpeted his vision of women's proper role:

[T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman . . . . The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood . . . .

It is true that many women are unmarried and not affected by any of the duties, complications, and incapacities arising out of the married state, but these are exceptions to the general rule. The paramount destiny and mission of woman are to fulfil the noble and benign offices of wife and mother.¹⁵

Although the U.S. Supreme Court began to apply the Equal Protection Clause to protect women from outmoded assumptions and archaic stereotypes about their proper role starting in the 1970s,¹⁶Bradley-esque visions of woman's "sphere" did not disappear, even if they sometimes took a more subtle form, illustrating the dynamic that Reva Siegel has called "preservation- through-transformation," whereby challenges to a status hierarchy can result in changes to legal rules or their justificatory rhetoric or both.¹⁷One place where such gendered ideologies surfaced was in the reproductive control context.

In 1973, the Court held in Roe v. Wade that the Constitution protected a woman's right to choose to have an abortion.¹⁸The ruling was 7-2, with Associate Justices White and Rehnquist dissenting.¹⁹The sizeable majority rejected the state's argument in defense of its sweeping criminal abortion law, which the Court characterized as contending that "[o]nly when the life of the pregnant mother herself is at stake, balanced against the life she carries within her, should the interest of the embryo or fetus not prevail."²⁰

Note the phraseology: "pregnant mother."²¹She is not a pregnant woman or pregnant female, where those might perhaps be understood as factual biological terms.²²Rather, she is a mother, which reflects an assumption not simply about biology but about her proper role. This is unlikely to be merely an innocent slip of the pen. Rather, it is a reflection of a particular world view about the order of things-the gendered order of things-that calls upon women to "fulfil the noble and benign offices of wife and mother," as Justice Bradley had earlier put it.²³Even supporters of some reproductive rights for women recognize this. Justices O'Connor, Kennedy, and Souter surprised many in the legal community in 1992 in Planned Parenthood of Southeastern

Pennsylvania v. Casey by adhering to some of Roe v. Wade.²⁴But even as they reaffirmed limited constitutional protection for a right to choose to have an abortion, they recognized that "[t]he mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear."²⁵"[T]hese sacrifices," they wrote in their controlling joint opinion,

"have from the beginning of the human race been endured...