Gendered Complications of Covid-19: Towards a Feminist Recovery Plan

ARTICLES

GENDERED COMPLICATIONS OF COVID-19: TOWARDS A

FEMINIST RECOVERY PLAN

NAOMI R. CAHN* AND LINDA C. MCCLAIN**

ABSTRACT

COVID-19 exposed the limitations in the current economic system on public

and private support for gender equity and the intersecting impact of gender,

race, and class in that lack of support. Women of color, particularly those who

are Black, Latina, or Native American, were at the intersection of the inequities

in the pandemic economy. The catalogue of COVID-19’s impact covers all

aspects of women’s lives: work, family, education, health, reproduction, mental

and physical well-being, and leisure.

This Article argues that COVID-19 has complex implications for gender equality

and gender equity as state and local governments, the federal government, and pri-

vate actors focus on recovery plans. The negative effects of the pandemic include

hundreds of thousands of deaths, lingering health complications for many who

have contracted the virus, massive economic disruption and loss for individuals,

families, and communities, and the exacerbation of structural inequalities in areas

ranging from children’s education to women’s status. The creative policy

responses prompted by the devastating impact of COVID-19 provide promise for

building a more transformative and equitable future. Indeed, while a return to the

status quo might be possible, developing a roadmap to resilience provides an op-

portunity to address the gender inequities in our social infrastructure—if there is

political will to follow that roadmap. Proposing a feminist recovery plan, this

Article focuses on a set of issues relating to pre-existing gender inequities concern-

ing work and family, including the gender pay gap, the child care crisis, and the

disproportionate role of women—particularly, women of color—in providing

essential but undervalued care work.

* Justice Anthony M. Kennedy Distinguished Professor of Law, Nancy L. Buc ’69 Research

Professor in Democracy and Equity, University of Virginia School of Law.

** Robert Kent Professor of Law, Boston University School of Law, and Aff‌iliated Faculty,

Women’s, Gender & Sexuality Studies Program, Boston University. Thanks to Boston University law

student Madison Harris-Parks, and to University of Virginia law school students Maria Luevano and

Jolena Zabel for their valuable research assistance. We also are grateful to Professor Julie Dahlstrom for

constructive comments on an earlier draft and Professor Catherine Powell for her engagement with this

project. Thanks, as well, to Danielle Pelfrey Duryea and Elizabeth Iglesias for inviting us to share this

work at the 2021 AALS Program on “Politics, Pandemic, and the Future of Poverty and Civil Rights

Law,” co-sponsored by the Sections on Civil Rights and Poverty Law. Finally, we would like to thank

Rachel Scholz-Bright and the editing staff of the Georgetown Journal of Gender and Law for their

careful and engaged editing of this Article. © 2021, Naomi R. Cahn and Linda C. McClain.

1

I. INTRODUCTION .......................................... 2

II. GENDER AS A RISK FACTOR PRE-PANDEMIC ..................... 10

A. THE WORKPLACE: THE GENDER PAY GAP .................. 11

B. PAID AND UNPAID CARE ............................... 13

III. GENDER AS A RISK FACTOR DURING THE PANDEMIC ............... 16

A. NEGATIVE IMPACTS .................................. 16

1. Employment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

2. Parental Child Care and Remote Schooling. . . . . . . . . . . . 18

3. Reproductive Health . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

4. Intimate Partner Violence . . . . . . . . . . . . . . . . . . . . . . . . . 26

B. POSITIVE RESPONSES ................................. 27

C. POLITICS .......................................... 32

IV. TOWARD AN INTERSECTIONAL FEMINIST RECOVERY PLAN ............ 36

A. A BEGINNING? GOVERNMENTAL RESPONSES AND AN INSPIRATION . . 38

B. CRUCIAL ELEMENTS: ADDRESSING GENDER INEQUITIES IN THE

WORKPLACE AND SOCIAL SERVICES ....................... 40

1. Paid Leave . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

2. Equal Pay and Investing in Women as Business Owners . . 43

3. Child Care and Support for Remote Learning . . . . . . . . . . 45

4. Elder Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50

5. Other Crucial Components: Health Care and Protection

Against Intimate Partner Violence . . . . . . . . . . . . . . . . . . 52

V. CONCLUSION ........................................... 55

“This is our moment to build a system that is capable of delivering

gender equality.”

–Hawai’i State Commission on the Status of Women, Building

Bridges, Not Walking on Backs: a Feminist Economic Recovery Plan

for COVID-19 1 (2020)

I. INTRODUCTION

The COVID-19 pandemic made pre-existing gender disparities worse glob-

ally, and pre-existing problems within social, political, and economic systems

amplif‌ied the pandemic’s impact.

1

In the United States, the pandemic has

exposed the structural limitations on public and private support for gender

1. See U.N., Policy Brief: The Impact of COVID-19 on Women (2020), https://www.un.org/

sexualviolenceinconf‌lict/wp-content/uploads/2020/06/report/policy-brief-the-impact-of-COVID-19-on-

women/policy-brief-the-impact-of-COVID-19-on-women-en-1.pdf; see generally Orly Lobel, Knowledge

Pays: Reversing Information Flows and the Future of Pay Equity, 120 COLUM. L. REV. 547 (2020)

(discussing gender inequity).

2 THE GEORGETOWN JOURNAL OF GENDER AND THE LAW [Vol. XXII:1

equity,

2

and the intersecting impact of gender, race, and class in that lack of sup-

port.

3

This article argues that, because of the pandemic’s disproportionate impact

on women, post-recovery plans must recognize and address these pre-existing

intersectional inequities and support gender equity.

4

The argument is pragmatic in

calling for needed laws and policies, but stems from a normative premise that gov-

ernment has a responsibility to address these inequities.

5

Conceptions of the social

contract, core public values of equality and fairness, and shared vulnerability sup-

port the need for this type of plan.

6

The catalogue of COVID-19’s impact covers all aspects of women’s lives:

work, family, education, health, reproduction, mental and physical well-being,

2. This Article refers to “gender equity” as fair treatment relative to needs and a commitment to

addressing the cultural, legal, and political obstacles that hinder gender equality. On this def‌inition of

“gender equity” and its role in achieving gender equality, see Breda Pavlic et al., Gender Equality and

Equity: A Summary Review of UNESCO’s Accomplishments Since the Fourth World Conference on

Women (Beijing 1995), UNESCO 5 (May 2020), https://unesdoc.unesco.org/ark:/48223/pf0000121145;

Gender Equality v. Gender Equity: What’s the Distinction?, PIPELINE (FEB. 5, 2018), https://www.

pipelineequity.com/voices-for-equity/gender-equity-vs-gender-equality/ (quoting UNESCO def‌inition

and arguing that “if equality is the end goal, equity is the means to get there”); Katica Roy, Why We

Need Gender Equity Now, FORBES (Sept. 14, 2017), https://www.forbes.com/sites/ellevate/2017/09/14/

why-we-need-gender-equity-now/#7100fa6177a2 (same); see also Agnes Binagwaho, The Difference

Between Gender Equity and Equality—and Why It Matters, FORTUNE (Mar. 25, 2020), https://fortune.

com/2020/03/25/gender-equality-and-equity-iwd-womens-education/ (elaborating on the International

Women’s Day theme, “[a]n equal world is an enabled world,” by arguing that global failure to reach the

promises made in the 1995 Beijing Declaration “stems from not having [gender] equity at the center of

countries’ approaches;” gender equity “works to correct the historical wrongs that have left women

behind” and “bridges the gaps in equality” with laws, policies, and programs that “work to change the

culture to be more supportive of women”).

3. See, e.g., Catherine Powell, Color of COVID and Gender of COVID: Essential Workers, Not

Disposable People, 32:3 YALE J. L. & FEMINISM (forthcoming 2021).

4. On the need for a gender-equitable recovery plan, see C. Nicole Mason with Andrea Flynn &

Shengwei Sun, Build(ing) the Future: Bold Policies for a Gender-Equitable Recovery, INSTITUTE FOR

WOMEN’S POLICY RESEARCH (2020), https://iwpr.org/wp-content/uploads/2020/11/Policies-for-a-

Gender-Equitable-Recovery-Finalsm2.pdf. The catalogue of COVID-19’s impact on women’s lives

that this article provides draws primarily on reported trends and statistics from the f‌irst several

months of the pandemic; we have done some updating to ref‌lect trends as the pandemic neared its

f‌irst anniversary. Even though these statistics speak to a particular point in time, we believe that

they capture general trends about the pandemic’s impact. Similarly, our evaluation of how various

state and federal recovery plans attempted to address these gendered impacts speaks to efforts

during 2020, with some attention to initial efforts by the Biden/Harris Administration. Further, this

article was substantially complete before vaccines for COVID-19 vaccines became available to the

public; thus, we do not assess the impact of vaccination and further economic reopening on the

gendered trends that we discuss.

5. Thus, this article does not seek to elaborate a normative argument for why gender equity is

important, but we believe such an argument follows from moral, legislative, and constitutional

commitments to gender equality; similar commitments to racial equality undergird the imperative of

remedying intersectional inequities of race and gender.

6. On the need for a new social contract attentive to racial and gender justice, see, for example, Powell,

supra note 3. One of the authors has argued elsewhere that a new social contract should support care as a

public value and foster institutional arrangements that address the gendered economy of care. See LINDA C.

MCCLAIN, THE PLACE OF FAMILIES: FOSTERING CAPACITY, EQUALITY, AND RESPONSIBILITY 84–114 (2006).

On shared vulnerability, see infra Part IV for discussion of Martha Albertson Fineman’s vulnerability theory.

2021] GENDERED COMPLICATIONS OF COVID-19 3