Claire Bowern on male lactation

« previous post | next post »

Claire Bowern, whom I know best for her work on historical linguistics and Australian languages, turned up recently as the author of an Op-Ed at Talking Points Memo, "The Supreme Court Says Men Lactate, Too. So When Can They Start Breastfeeding?", 2/9/2015:

The Supreme Court has now established that it isn't sex discrimination to fire a woman because of breastfeeding, in part because men can lactate, too. Critics have met the ruling with disbelief, indignation and dismay.

I disagree. I think it's great news. Finally, we have federal legal recognition that men can take part in this fundamental part of newborn care. At times the present Supreme Court has seemed retrograde and unconcerned with reproductive rights (Hobby Lobby, anyone?), but in this case the Justices have forged ahead, outpacing even biology and culture. I haven't seen too many men in lactation classes (maybe they're such naturals, they don't need the classes) or publicly chestfeeding their kids, and the Daily Mail ran a story about the now sadly defunct "Project Breastfeeding"'s campaign to get more dads involved. Their slogan was "If I could, I would"— and now you can!

This seems to be the fruit of an Op-Ed Project Public Voices Fellowship, whose goal "is to dramatically increase the public impact of our nation's top underrepresented thinkers, and to ensure our ideas help shape the important conversations of our age", through an approach that is "playful, dynamic and results-oriented".

In fairness, the Supreme Court's only action in this case was to reject a petition to review the Eighth Circuit Court of Appeals' decision to dismiss an employment discrimination case. You can find the details in a blog post by Galen Sherwin of the ACLU, "Firing a Mom Because She's Breastfeeding Is Sex Discrimination", 2/2/2015, which makes it clear that the Court of Appeals dismissed the suit on other grounds, and that neither the Court of Appeals nor the Supreme Court mentioned male lactation.

But the trial court decision does explicitly state that

Ames has not presented sufficient evidence that lactation is a medical condition related to pregnancy. Indeed, as the Nationwide Defendants point out, “lactation can be induced by stimulating the body to produce milk even though the person has not experienced a recent birth or pregnancy.” Defs.’ Reply Br. in Supp. of MSJ (“Nationwide’s Reply Br.”) at 12 n.9. Additionally, the Court takes judicial notice of the fact that adoptive mothers can also breast-feed their adoptive babies. See Defs.’ App. at 323–25 (stating that adoptive mothers can breast-feed their adoptive babies and describing what adoptive mothers should do to stimulate milk production). Furthermore, it is a scientific fact that even men have milk ducts and the hormones responsible for milk production. See Nikhil Swaminathan, Strange but True: Males Can Lactate, SCI. AM., Sept. 6, 2007, available at Accordingly, lactation is not a physiological condition experienced exclusively by women who have recently given birth.

So I think that Prof. Bowern's characterization of the Supreme Court's position on male lactation is approximately as fair and logical as the District Court's rejection of the argument that "terminating an employee due to lactation is gender or pregnancy discrimination". Plus it's more playful, dynamic, and results-oriented.





  1. richardelguru said,

    February 10, 2015 @ 7:12 am

    Not terribly OT, I suppose, but I've never understood the fuss about breasts. I mean on average we all have one (nipples being, of course, an entirely different matter).

  2. Robert said,

    February 10, 2015 @ 8:38 am

    I think you'll find on average we all have two, exactly the same as for nipples.

  3. Anthony said,

    February 10, 2015 @ 9:56 am

    When I beat my breast I don't choose a side.

  4. Ray Girvan said,

    February 10, 2015 @ 10:27 am

    I certainly can't lactate. In the words of The Verve:

    The dugs don't work,
    They won't let me nurse.

  5. J. W. Brewer said,

    February 10, 2015 @ 11:09 am

    This construal of what the Supreme Court did is sufficiently playful, dynamic, etc. as to have attracted the attention of, which doesn't do all that much coverage of the Supreme Court beat: FWIW, it is probably not a good idea to mush together in a single compound NP "pregnancy discrimination" (which works on the assumption that men and women are not similarly situated in a certain salient way) and "gender (or "sex") discrimination" (which works on the assumption that they generally are, or at least in principle can be, similarly situated and that assumptions to the contrary may be evidence of bigotry). I'm pretty sure historically that the obvious difficulties that would arise in arguments about whether an employer was treating pregnant female employees differently from how it would hypothetically treat hypothetical pregnant male employees is why pregnancy discrimination as a separate category got enacted into law.

  6. Keith said,

    February 10, 2015 @ 2:26 pm

    I think that the Monty Python team could have had a field day with this, with a man named Loretta wanting to be able to breast feed in the workplace without the fear of discrimination, and his lawyer making a plea for him to have the right to do it, even if he lacked the physical means to exercise that right.

  7. AntC said,

    February 11, 2015 @ 3:12 am

    @Keith Monty Python? Weren't Lewis Carroll and Gilbert & Sullivan there well before? And Beachcomber.

  8. Dan Lufkin said,

    February 11, 2015 @ 11:50 am

    I think I recall that the Greenland Saga tells of a wife in the Western Settlement who dies in childbirth in the early winter. Her husband cuts his own breast with his sword and successfully feeds the infant with his blood until spring, when other arrangements can be made.

  9. Jon Weinberg said,

    February 11, 2015 @ 3:26 pm

    Historically, pregnancy discrimination got enacted into law by virtue of the Supreme Court's ruling that it was not sex discrimination to treat pregnant employees differently from employees requiring medical treatment for other reasons. The Court said gee, the state was only treating "pregnant persons" differently from "nonpregnant persons," and the category of "nonpregnant persons" included both men and women.
    Congress responded by defining sex discrimination to include pregnancy discrimination, and mandating that women affected by pregnancy be treated the same as "other persons not so affected but similar in their ability or inability to work." I think it's fair to characterize the underlying attitude as one that men and women as a fundamental matter are similarly situated, each vulnerable to a host of potential disabilities. The fact that they are not entirely similarly situated — women get pregnant, men get prostate cancer, etc. — necessitated this legislation. But Congress said that the important thing was the degree to which the disability made one able or unable to work.

  10. Claire said,

    February 14, 2015 @ 9:13 pm

    Following up on Jon's comment, one of the issues for the lower court was whether failure to provide adequate provisions for lactation was pregnancy-related discrimination. They ruled against that interpretation, in part on the grounds that lactation isn't just associated with pregnancy (including that men can lactate too under certain circumstances). As a non-lawyer, I find this reasoning weird (especially given that in the relevant case, the lactation clearly was associated with pregnancy). They also deemed that comments like "go home to be with your babies" weren't sexist because they could be said to either men or women. This is also weird from a linguistic point of view, since a lot of sexist (and racist) language acquires its Xist meaning precisely because of who it's being said to, and in combination with other behavior.

RSS feed for comments on this post