Unsexing Breastfeeding

For half a century, constitutional sex equality doctrine has been combating harmful sex stereotypes by invalidating laws that treat women as caregivers and men as breadwinners. Yet decades after the constitutional sex equality revolution unsexed parenting roles, one area of parenting has escaped this doctrine’s exacting gaze: breastfeeding. Beginning in the 1990s in the wake of public health efforts to promote breastfeeding, a raft of laws were enacted, from insurance coverage mandates under the Affordable Care Act to workplace accommodations under the Fair Labor Standards Act, that provide substantial breastfeeding protections and benefits, but only to women. Although the sexed law of breastfeeding exists in stark contrast with the unsexed law of parenting, it has not been challenged or even noticed. This Article makes visible the sexed law of breastfeeding, exposes the tension it creates in the law of sex equality, and considers how to resolve this tension. Courts, lawmakers, and commentators assume that breastfeeding entails only the physical fact of lactation, and thus likewise assume that it affects only women. As an initial matter, transgender men and nonbinary persons can lactate, and thus it is questionable whether even laws that regulate lactation should be sexed. Still further, breastfeeding—a method of nutrition for 85% of infants at birth and 60% of infants at six months—encompasses a host of carework that does not turn on lactation. Fathers can, for example, buy a breastpump, take a breastfeeding class, choose a lactation consultant, or feed a baby a bottle of breastmilk. Because much breastfeeding carework can be separated from sex, the legal assignment of this carework to women is premised in sex stereotypes. Sexed breastfeeding law thus wrongly pigeonholes women for care and men for career in just the way that sex equality law has long tried to counter in other areas of parenting. After surfacing sex equality law’s distinct treatment of breastfeeding, this Article considers how to cohere the law’s treatment of breastfeeding with its treatment of the rest of parenting. The answer can be found in existing Supreme Court precedents teaching that sex-based rules must be carefully scrutinized, even in the presence of relevant physical sex differences, to ensure that the reliance on sex extends no further than necessary. Applying this jurisprudence to breastfeeding can promote not only equality between men and women, but also the equality of lesbian, gay, transgender, and nonbinary parents

Trade Friction with Japan and the American Policy Response

In Toyko recently I called upon an official of the Ministry of International Trade and Industry (MITI) to discuss trade frictions between the United States and Japan. On the way to my appointment I passed by Hibiya Park in the center of the city. About 10,000 people were gathered in a peaceful demonstration against any lifting of Japan\u27s quotas on imports of agricultural products. Inside the MIT! building I asked the official whether the quotas on beef and oranges would be abolished soon. He told me they would eventually be liberalized or abolished to please the United States, but that political pressures were forcing the government to proceed very slowly. The situation seems unique. In an age when the policy of retaliatory protectionism is being officially embraced in countries around the world and the free trade ideal is under severe intellectual and political attack, Japan is moving to decrease protectionist barriers and to open its markets to foreign imports. Several questions naturally arise from this state of affairs: Why has Japan adopted this trade-liberalization stance? What measures are being adopted? Will the new policy really succeed in increasing access to Japanese markets for goods, sources) and investments from the United States and other countries? Finally, what larger lessons are there to be learned from our trade frictions with Japan

The North American Free Trade Agreement (NAFTA): Good for Jobs, for the Environment, and for America

Although NAFTA\u27s impact is primarily economic, it will also have a profound political impact, especially on relations between Mexico and the United States. In coming to the decision to seek a free trade agreement with the United States, Mexico has already made important political decisions: to jettison its defensive nationalism and fear of United States domination; to reform and liberalize its economic system; and to pave the way for democratizing its political institutions. The United States, in turn, has long sought a solid foundation to overcome its often prickly relationship with its southern neighbor and other Latin American nations. Eliminating barriers to free trade may at long last provide the policy key to a new era of genuine cooperation and friendly relations between the United States and Mexico as well as the rest of Latin America