AuthorCahn, Naomi R.
PositionSymposium Conference: Are You There Law? It's Me, Menstruation

Menopause is not a punch line. (1)

Menopause is defined by its relationship to menstruation--it is the cessation of menstruation. Medical texts identify menopause as part of the cycle of "decay" associated with female reproductive functions; (2) early menopause is often a dreaded result of various medical treatments and a sign of disfunction.

It turns out that only three types of animals experience menopause: killer whales, short-finned pilot whales, and humans, while other animals can reproduce until death. (3)

Although the precise relationship between evolutionary theory and the physical development of human menopause is still uncertain, scientists and anthropologists suggest that the "grandmother hypothesis" provides a partial explanation: older women, who can no longer produce their own children, ensure their genetic legacy by playing a critical role in helping to feed, raise, and nurture their grandchildren.

The average woman (4) will spend almost as many years "post-menopause" as they will menstruating, and they may spend four years (or more) experiencing perimenopausal symptoms, the transition time between "normal" menstruation and menopause. But legal issues relating to perimenopause, menopause, and post-menopause are just beginning to surface, prompted by the movement towards menstrual justice, feminist jurisprudence, and developments in the law of aging.

This Essay is an initial effort to catalogue various legal approaches to menopause and to set out areas for further analysis. It briefly explores cultural images of menopause and post-menopausal women, including the ubiquitous hot flashes; analyzes potential legal claims for menopausal justice; and suggests the interrelationship between such approaches and social attitudes towards menopause. It suggests that "normalizing" menopause--acknowledging its realities--is one means for removing the associated stigma and "disabilities" (5) and might result in reinterpreting existing laws and guiding future legal reforms. (6)

  1. Menopause Culture

    In late 2020, an article in Glamour magazine tartly noted that "the way we talk about [menopause] (or rather, don't talk about it) in our society would make you think it's a dirty word or something to be ashamed of--rather than a natural part of the aging process for women." (7)

    It wasn't until the early eighteenth century that menopause began to be viewed as a medical disorder, although the cessation of menstruation was not a new concept. (8) But it was the distinctive naming of the experience, and its framing as a disorder that first appeared in medical journals around that time.

    Since then, much of the focus on menopause has been on curing clinical symptoms, ranging from hot flashes to "vaginal and vulvar atrophy" (9) to the multiple other potential symptoms of perimenopause and menopause (10) and helping to ensure that menopause "was [not] the end of real life." (11) While menstruating women may face the cultural trope of being "impure" and "dirty, (12) those experiencing menopause face intersectional stereotypes based on both gender and aging. Efforts to "control" menopause and its aftermath through hormone replacement therapy (HRT) became popular after gynecologist Robert Wilson published a best-selling book, Feminine Forever, claiming that menopause was a disease that resulted from an estrogen deficiency and could be treated with estrogen replacement therapy: the promise was that women would never experience the effects of aging. (13)

    While HRT can be an effective treatment for menopause symptoms, not only might it--ironically--cause monthly bleeding, (14) it also is still marketed as a pseudo-youth elixir. (15) The use of HRT preys on fears of aging, and raises questions of what counts as a legitimate "medical" issue for which treatment is needed.

    Of course, notwithstanding the medical and cultural descriptions, individuals do not necessarily experience menopause as a negative disorder. (16) From a medical perspective, at least some menopausal symptoms appear to be culturally-dependent and responsive to psychological interventions. (17) And symptoms vary, based on numerous factors. (18)

    Culturally, women themselves have recognized that the years after childbearing might finally free them to experience "more comfort and satisfaction." (19) Indeed, at a time with little birth control and when dominant cultural tropes confined women to a separate sphere, it is not surprising that Elizabeth Cady Stanton predicted that she would not reach her prime until age fifty. (20) It is a time of "ungendering," an "opportunity [] to finally slip outside the brutal binary system" of gender. (21)

    Nonetheless, the negative stereotype persists, and menopause remains simultaneously the subject of scorn and neglect. Recently, an attorney disparagingly commented that opposing counsel might be too warm in a room because of menopause. (22) Women report difficulties with handling menopause at work, (23) ranging from the temperature in the office to managing symptoms to harassment; (24) untreated hot flashes result not just in a loss of productivity at work but also higher health claims; (25) and a group calling itself the Red Hot Mamas--the "leading provider of menopause education and support programs" (26)--even offers tips on how to handle symptoms, such as erratic periods at the office. (27) The femtech industry, which has focused on menstruation and fertility, is just beginning to turn to menopause; (28) while there may be data privacy benefits to not being the subject of femtech, this also suggests menopausal women are not worthy of commodification.

  2. Legal Theories and Potential Claims

    At one point, menopausal women were explicitly treated differently, such as through insurance denials, because menopause allegedly "disrupted all sorts of physical functions and created nervousness." (29) By using the "menopause defense," a party could diminish the harms experienced by menopausal plaintiffs by attributing the women's damages to menopause, thereby providing a potential basis to limit relief. (30) Such allegations might be made against any woman over the age of thirty-five, covering a broader range of women than those actually undergoing menopause. (31) Indeed, airlines attempted to justify age limits of 32 on flight attendants by explaining "that the performance of the stewardess' job requires enthusiasm which is lost with age... that women between the ages of 38 and 50 undergo changes of body, personality and emotional reactions, which would interfere with their performance of the stewardess' job," and that, once they reach their mid-thirties, women thereafter undergo changes associated with the menopause which [...] would interfere with their satisfactory performance of the stewardess job." (32) In 1999, a law review article observed that menopause had been invoked "in over fifty reported...

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