This week in US juridical misogyny…

1) You’ll be interested to know that if you get fired for breastfeeding, that is not an instance of sex discrimination, according to a ruling from the Eighth Circuit Court that the Supreme Court has decided to let stand, because, well, man can lactate. It’s been known to happen. They just mostly don’t. So, you know, no problem. Also, if your supervisor tells you that you should be at home with your baby, well, he could say that to a man, too, so that’s also not sex discrimination.

A lawyer has linked us to the following: “Just as one final follow-up, here’s a snopes article on the misleading headlines:” Thanks! And sorry I didn’t catch that.

Let’s just get this out there: yes, it is possible for some cis men sometimes to lactate, if they make it a goal and work toward it. The same is true for trans women, and that’s fantastic, in my book, because I have known trans women to whom that would have meant a lot. And trans men certainly can lactate.

That said, I highly doubt the Eighth Circuit Court could give two shits about trans people. Call it my innate cynicism if you must, but I doubt they even thought about trans people. When it comes to cis people, the vast, overwhelming majority of people who lactate are women. End of story. The vast majority of people who are lactating regularly, intensely, and in a way to support a baby are going to be cis women, and then some trans men. Nobody tells men that they should be at home with their babies. Nobody uses men’s reproductive functions to torment them, by, say, refusing a lactating woman access to a room in which she can pump, causing her pain, anxiety, and possible injury (I’ve known women who’ve developed mastitis–it is incredibly painful). This is a throwback to the Rehnquist court, when it was ruled that pregnancy discrimination wasn’t sex discrimination because if a man got pregnant, he’d be subject to the same conditions. And if Rehnquist was contemplating the plight of trans men, I’m the lowest form of life, an anti-vaxxer.

I don’t know how this happened, legally speaking, and I don’t care. It’s a fucking travesty. It reminds me of the title of an opinion piece that ran in the NYT a week or so ago: “Should the Supreme Court Take into Account How Its Rulings Will Affect the Real World?” YES IT FUCKING WELL SHOULD. I don’t see the virtue in adhering to any old document, be it the Bible or the Constitution just for the sake of textual fidelity. This is the REAL WORLD, and we have to live in it, and it needs to be as reasonable as possible.

2) Purvi Patel, in Indiana, is facing up to 70 years in prison for the mutually exclusive “crimes” of having an illegal abortion (feticide) and felony neglect of a dependent minor. The latter charge, of course, requires a live minor, whereas feticide requires a dead fetus, so perhaps you, unlike the Indiana jury, can see the problem here (this is one of the problems with not requiring logical reasoning as a skill in high school). And that’s not even getting into the problems of any kind of abortion being illegal (aside from the kind forced on a pregnant woman against her will–but I know how much juries in this country hate to acknowledge that a woman’s desires matter). Patel’s crime was to order abortifacient drugs on-line and then have a miscarriage/stillbirth. For this she could spend the rest of her life in prison. Not in El Salvador. In Indiana.

What the linked article doesn’t address is how the police got called into the situation in the first place. Patel went to a hospital for heavy vaginal bleeding, and admitted to the doctors that she had been pregnant and had miscarried. So who called the cops? Isn’t there an issue of doctor-patient confidentiality here? Is the lesson that women who do this shouldn’t go to the ER for help, but should just let themselves bleed to death rather than risk public humiliation and decades in prison?

And what about Patel’s race? I wonder what the racial make-up of that jury was, whether it was easy for them to see Patel as some kind of monstrous, exotic child-murderess because she is neither white nor Christian? And where is the father of the fetus in all this? What kind of scumbag lets a woman face this on her own without taking responsibility for his share in her ordeals?

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11 comments for “This week in US juridical misogyny…

  1. Donna L
    February 4, 2015 at 3:10 pm

    Both cases are absolutely horrible.

    I have nothing to contribute on the second one other than horror.

    The logic of the 8th Circuit decision in the first case is so wretched that it sounds like a satire — akin to Anatole France’s famous comment that there’s no discrimination against poor people because the rich and poor alike have the same right to sleep under bridges. It’s difficult to believe something like that could seriously be said with a straight face. How many cis men lactate (usually because of a medical reason)? One in 100 million? How many cis men get told to stay home with their babies? Zero, that I’ve ever heard of.

    It makes about as much sense as the comment by a New York appellate court a few years ago that keeping trans women out of women’s bathrooms wouldn’t violate a law prohibiting discrimination on grounds of gender identity or expression, because trans and non-trans people alike are equally required to use the bathrooms for their assigned gender. Or the argument I’ve heard that gay and straight people alike have the same right to marry someone of the “opposite sex.”

    Then again, I’ve seen courts reject arguments by defendants that sexual harassment doesn’t violate laws against sex discrimination because men and women can both be sexually harassed. That is, of course, true — far more so than the “men and women can both lactate” argument — but it’s not the issue: the issue is whether the particular defendant harasses only women (or only men), and, therefore, does discriminate on grounds of sex. (Of course, if somebody harassed every employee, they wouldn’t be discriminating on grounds of sex, but there might be some other basis for suing them.)

    I think the same logic should apply here: would this company have told a male employee to go home and take care of babies? (I doubt it.) Would they have accommodated a lactating male employee? (That I’m not sure of; they probably would fired him long ago!)

    Of course, the best practical solution to avoiding this kind of decision might be to extend the federal Pregnancy Discrimination Act to cover “post-pregnancy” events such as lactating, or to enforce the provisions to that effect in the Affordable Care Act. Or, on the state level, to pass and/or enforce laws mandating the right to accommodations for breastfeeding and lactation; see the summary of the existing laws at

  2. Broseidon King Of The Brocean
    February 4, 2015 at 3:59 pm

    The Supreme Court delights in their own farts.

  3. a_lawyer
    February 4, 2015 at 9:52 pm

    I hate to say it, but the legal stuff matters here, because a lot of the reporting on the “male lactation” case is factually wrong, and it seems like you have been misled.

    First: the district court judge was a fucking idiot. The judge ruled on that “men can lactate” shit . And on that basis the judge granted summary judgment, which means “no reasonable jury could find for the woman, even if we accept all of her claims as true.”

    Problem? Yes, of course.

    That basis was not what the 8th circuit used.

    By law, the 8th circuit reviews summary judgment de novo. That means that it ignores the district court reasoning, and starts from scratch on its own. The facts from the lower court are relevant; the reasoning is not.

    Here’s the actual opinion from the 8th Circuit. Read it if you’d like: you will see that it has absolutely no mention of men lactating. At all. That is because it didn’t matter to the 8th Circuit.

    It was a shitty opinion anyway, at least IMO. Courts are way too eager to dismiss employment plaintiffs, summary judgment was fucking ridiculous given those facts. But in any case, it didn’t have anything to do with male lactation.

    On to the Supreme Court.

    The Supreme Court only looks what “what you ask it to look at.” Here is a link to the petition for Supreme Court review.

    Here is what the plaintiff (the woman involved)asked the Supreme Court to answer:

    (1) In a constructive discharge case, must
    the plaintiff also prove that the employer
    acted with the intent of forcing the plaintiff
    to resign?
    (2) In a constructive discharge case, must
    the plaintiff also prove that before resigning
    he or she complained sufficiently to the
    employer about the discrimination?

    As you can see, the question of lactation has nothing to do with the “questions presented,” which are the core issues that the court is actually looking at.

    The issue of male lactation did come up in the briefs. Look at the defendant’s brief, footnote 28, starting on page 32a.

    But that’s the defendant, not the Supreme Court.

    The fact that the Supreme Court denied to take the case (which, FWIW, happens to almost all cases) doesn’t mean it thought the defendant’s reasoning, in a footnote in the brief, was correct.

    I’m not saying this was a good case. But it isn’t the case you’re reporting.

    • Broseidon King Of The Brocean
      February 5, 2015 at 1:57 pm

      Check out this particular legal fart though from the 8th Circuit opinion:

      That Nationwide’s policies treated all nursing mothers and loss-mitigation specialists alike demonstrates that Nationwide did not intend to force Ames to resign when it sought to enforce its policies. See Allen v. Bridgestone/Firestone, Inc., 81 F.3d 793, 797 (8th Cir.1996) (“Where, as here, employees are treated alike, ‘no particular employee can claim that difficult working conditions signify the employer’s intent to force that individual to resign.’ “ (quoting Bristow v. Daily Press, Inc., 770 F.2d 1251, 1255 (4th Cir.1985))).

      Like if you catcall all the women on the street, no particular woman can complain about being targeted for being a woman?

      Legal Idiocy.

      • John
        February 6, 2015 at 2:32 pm

        The first part of that paragraph, however, changes the meaning of the statement in context:

        Moreover, Ames was denied immediate access to a lactation room only because she had not completed the paperwork to gain badge access. Every nursing mother was required to complete the same paperwork and was subjected to the same three-day waiting period. Further, Hallberg tried to accommodate Ames by allowing her to use a wellness room as soon as it was available and by requesting that Ames receive expedited access to the lactation rooms. During Ames’s meeting with Brinks, Brinks relayed his expectations of her in the upcoming weeks and the consequences of failing to meet those expectations. Brinks’s expectations of Ames were not unreasonable, for he expected all of his employees to keep their work current, given the high priority that timely work-completion is accorded within the loss-mitigation department. That Nationwide’s policies treated all nursing mothers and loss-mitigation specialists alike demonstrates that Nationwide did not intend to force Ames to resign when it sought to enforce its policies.

      • Broseidon King Of The Brocean
        February 6, 2015 at 2:43 pm

        Hooray! No it doesn’t!

  4. a_lawyer
    February 5, 2015 at 4:08 pm

    The phrase I sometimes use to explain it is this:

    You can be an utter asshole so long as you are an equal opportunity asshole.

    • Broseidon King Of The Brocean
      February 6, 2015 at 3:03 pm

      That’s not an explanation. It’s a restatement of the same idiocy.

    • a lawyer
      February 6, 2015 at 4:23 pm

      Just in case anyone reads this, though, let me pass on the most important employee-rights tip out there:


      I don’t mean to suggest that this employer was anything other than a total dick. But the case is depressing because any competent employment attorney, given 5-10 minutes on the phone, would have been able to stop the entire debacle. Probably for free.

      It is far, far, easier to prevent a problem than to fix one. And it is often possible to make tiny changes which will radically improve the employee’s position.

      I give this sort of advice all the time and rarely charge for it. I really wish people would call me earlier. Nobody I know in the employment-plaintiff arena charges for initial consults. is a good resource; all of us are focused on representing employees, in suits against employers. There are state chapters as well, which are often more useful. Google “yourstate nela employment” and you will find them.

  5. a lawyer
    February 12, 2015 at 1:49 pm

    Just as one final follow-up, here’s a snopes article on the misleading headlines.

    • EG
      February 12, 2015 at 1:59 pm

      Thanks. I’ll link it in the OP.

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