Transgressive Caregiving

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Transgressive Caregiving

Laura T. Kessler1

[Note: This essay is part of a book project exploring the positive, political, and progressive potential of nontraditional family care practices and their implications for law. It represents the theoretical core of the book, and a highly condensed version of what will be Parts I & II. At the workshop, I will likely share a draft chapter from Part III, which aims to apply the theoretical groundwork set out here to a set of concrete contemporary debates about families and family care work. An abstract of the book precedes the essay. Thank you for taking the time to read and comment on my work—LTK.]

Can unpaid family caregiving be a form of political resistance or expression? I argue that it can, especially when done by people ordinarily denied the privilege of family privacy by the state. Unlike feminists from other disciplines, feminist and queer theorists within law have largely overlooked this aspect of caregiving, regarding unpaid family labor as a source of gender-based oppression or as an undervalued public good. Consequently, prominent feminist and queer theorists within law have set their sights on employment or sexual freedom as more promising sources of emancipation for women.

This book examines a less well-explored conception of family caregiving within law, revealing the way that family caregiving can be a liberating practice for caregivers. Specifically, sex, reproduction, parenting, and housework can constitute affirmative political practices of resistance to a host of discriminatory institutions and ideologies, including the family, workplace, and state, as well as patriarchy, racism, and homophobia. I label such political work “transgressive caregiving” and locate it most centrally—although not exclusively—in the care work of ethnic and racial minorities, gays and lesbians, and heterosexual men, whose family caregiving practices are the focus of the book.

The first chapter, “Is There Agency in Dependency?,” introduces the major themes in the book. Chapter two summarizes conventional feminist and queer legal theory positions on family caregiving. These two chapters constitute Part I.

Part II investigates the family caregiving work of African-American, gay and lesbian, and heterosexual male caregivers. Chapter two argues that caregiving work within black families and communities is imbued with significant positive political meaning that derives from blacks’ historical experience of discrimination with regard to family life. It supports this assertion through an analysis of materials documenting black women’s activism against the sexual economy of slavery, the eugenics movement, and contemporary welfare policies aimed at influencing black women’s reproductive decisions; with social science research on the positive meaning of motherhood for black women; and through a discussion of the contribution of “othermothering” by extended kin in black communities to black survival and power.

Chapter three demonstrates how gay men and lesbians have long suffered state-sponsored discrimination with regard to their reproduction, sexuality, and family life. This is achieved through an analysis of statutes and cases denying gays and lesbians sexual privacy, marriage, adoption, and custody rights. The chapter shows how, within the context of this history of discrimination, family caregiving may constitute a positive, political practice of resistance. This chapter also reviews anthropological research on the value of “families of choice” to lesbians and gay men, which also often consist of extended social kinship networks.

Chapter four investigates the devaluation of heterosexual men’s family caregiving work in the law, focusing in particular on hostility toward caregiving men in the employment law and family law contexts. This is achieved through an analysis of reported employment discrimination and divorce cases demonstrating the persistence of the male-breadwinner ideal. This chapter also surveys sociological and historical materials on the meaning of masculinity in the modern era and its inconsistency with caregiving labor.

Part III applies the core theoretical insight of the book in the context of five contemporary debates about the legal regulation of families and family care work: same-sex marriage, “de facto” or “psychological” parenthood, the right not to be a parent, work/family conflict, and welfare reform. In each of these contexts, I demonstrate how reframing family care work as a practice with political significance may justify the fundamental reformation of institutions such as the family, workplace, and social welfare system.

In addition to its substantive contributions, this book stakes implicit methodological claims for the importance of interdisciplinary research in legal scholarship and for the benefits of theorizing from minority perspectives. Drawing equally on legal, historical, anthropological, and sociological materials, and examining care from minority perspectives, the book calls into question the neatness of some of feminist and queer legal theories’ most accepted generalizations about the nature of family caregiving work and the reasons it should be valued by the law.

Beyond feminist and queer legal theory, this book represents an important challenge to the traditional notion within liberalism that politics is effected primarily through public institutions and the public sphere—for example, through voting, speaking, organizing, and protesting. This prevailing focus on public, official, and visible political activity misunderstands the way in which politics is often manifested in many individuals’ lives. Unofficial, private, and seemingly invisible spheres of social life and organization often are equally important.

Draft: Please do not cite, quote, or circulate without written permission.



Can family caregiving be a form of political resistance or expression? It can, especially when done by people ordinarily denied the privilege of family privacy by the state.

Feminist and queer theorists within law have, for the most part, overlooked this aspect of caregiving, regarding unpaid family labor as a source of gender-based oppression or as an undervalued public commodity. Consequently, prominent feminist and queer legal theorists have set their sights on wage work (Schultz 2000) or sexual liberation (Franke 2001a) as more promising sources of emancipation for women. Although other legal feminists continue to focus on the problem of devalued family labor, these theorists tend to justify increased support for care work primarily on the benefits it confers on children and society, on liberal theories of societal obligation, on ending gender oppression, or on simple human needs (Alstott 2004; Becker 2002; Fineman 2001, 2003; McClain 2006; Williams 2000).

This book examines a less well-explored conception of family caregiving within the feminist and queer legal theory literature, revealing the way that family caregiving can be a liberating practice for caregivers qua caregivers. Specifically, care work can constitute an affirmative political practice of resistance to a host of discriminatory institutions and ideologies, including the family, workplace, and state, as well as patriarchy, racism, and homophobia. I label such political work “transgressive caregiving” and locate it most centrally—although not exclusively—in the care work of ethnic and racial minorities, gays and lesbians, and heterosexual men.

Adopting this methodology of thinking from multiple lives leads, at least tentatively, to a new insight about care within feminist and queer legal theory: Although family caregiving may simply seem to support patriarchy, closer examination reveals that it can also be a deeply and complexly subversive practice. Specifically, when practiced by individuals whom the state has historically denied the privilege of family privacy, caregiving work may constitute a positive political practice of resistance to oppression.


A. African-American Care Practices

The state has heavily regulated black women’s sexuality, reproduction, and family caregiving work from slavery to the present. Black women resisted and sought refuge from this discrimination in part through family and community relationships. Caregiving work within black families and communities is thus imbued with significant political meaning that derives from blacks’ historical experience of oppression. This pattern is borne out by historical materials tracing black women’s activism, as well as by contemporary social science research.

Controlling black women’s reproduction was central to slavery (Bridgewater 2001; Jones 1985; White 1985). Slave owners owned black women’s labor and commodified their biological reproduction. This was enforced through the Roman property doctrine of partus sequitur ventrem, establishing that the issue of a female slave is born in the condition of the mother (Burnham 1987). Put simply, black women’s fertility produced their owners’ labor force. In addition, enslaved people could not form legally recognized marriages; intimate partnerships were regularly disrupted by sale, hiring out, and apprenticeships; and children were regularly and permanently separated from their mothers, often without notice (P. Davis 1997).

Although a comprehensive review of black women’s resistance to their unique place within slavery is not possible here, one helpful example pertains to black feminist abolitionist ideology. Black feminist abolitionists identified the commodification of enslaved women’s reproduction as central to the system of slavery (A. D. Davis 1999; Stanley 1998). This vision was an alternative to mainstream abolitionist movements which defined the sine qua non of freedom as the right to sell one’s labor in the free market and which aimed to emancipate black women from their slave masters so they could come under the aegis of black patriarchs (Stanley 1998). In contrast, black women equated freedom primarily with the right to own their bodies unqualified by gender relations or capitalist exploitation.

This “recessive” strain of abolitionism developed by black women activists is evident, for example, in a lecture delivered by free black abolitionist Sarah Parker Remond. On a speaking tour of England for the American Antislavery Society in 1859, Remond defined property in the sexual body, as opposed to the laboring body, as the essential difference between slavery and freedom.2 Similarly, reflecting on her newly emancipated status, ex-slave Bethany Veney stated, “A new life had come to me. I was in a land where, by its laws, I had the same right to myself that any other woman had . . . . My boy was my own, and no one could take him from me.” (1889). This conception of freedom demonstrates the way in which black women transformed intimacy, reproduction, and mothering into practices of political resistance by reclaiming them for themselves in the face of oppression by white slave masters and more tangentially by black men.

The historical control of black women’s reproduction— and black women’s resistance through family and community relations—continues to the present. In the last century, with the end of the economic system of slavery, the regulation of black women’s sexuality and reproduction has manifested primarily through state-sponsored efforts to limit their childbearing. This more recent history includes the role of the eugenics movement in our country’s early birth control policy, sterilization abuse of black women during the 1960s and 70s, recent campaigns to encourage the use of long-term birth control methods such as Norplant and Depo-Provera among black teenagers and welfare mothers, and welfare reforms aimed at eliminating supposed financial incentives to poor, black women’s childbearing (Kessler 1995; Roberts 1999).

In the modern era, black women have been accused of failing to discipline their children, of abusing their children, of retarding their children’s academic achievement, and of emasculating their sons and husbands (Moynihan, 1965). The alleged failure of black women’s caregiving and the expectation that black women should work were central themes in the major welfare reforms of the last decade (Fineman 1991; Kessler 1995). The construction of black women’s mothering as deviant has similarly been the basis for the heavy involvement of the state in black families through the child welfare system. Today, forty-two percent of all children in foster care nationwide are black, even though black children constitute only seventeen percent of the nation’s youth (Roberts 2002).

In response, black women activists, beginning in the 1960s, focused considerable energy on defending black motherhood and the black family. The Negro Family: The Case for National Action (“The Moynihan Report”), published in 1965, served as a catalyst for this defense (Moynihan 1965). In the report, Assistant Secretary of Labor Daniel Patrick Moynihan drew heavily from the work of black sociologist Edward Franklin Frazier (1939) to depict the black family as a “tangle of pathology” (Moynihan 1965, p. 75), an intergenerational morass of welfare dependency, criminality, and illegitimacy. Moynihan held the uniquely matriarchal structure of the black family responsible for this pathology. According to the report, “matriarchal” (p. 70) upbringing left boys morally weakened and lacking the strong work ethic that would enable them to succeed in American society. It also reasoned that black boys needed strong male role models, and that if the black family did not provide them, the military would; there, they would be properly socialized by male authority figures.

Black women’s resistance to such depictions was complicated by their allegiance with black men in the black liberation struggle (Umansky 1994). The black community saw the report as an example of a covert governmental policy of genocide against African-American people, along with sterilization abuse and black men’s disproportionate representation in the war against Vietnam. This perception moved certain segments of the civil rights movement toward a nationalist and pronatalist perspective. As explained by historian Lauri Umansky:

[M]any black nationalists asserted that the black nation needed to fortify itself with numbers. On the most basic level this meant that blacks must have more babies. . . . [B]lacks were enjoined to resist by drawing themselves into father-dominated families and having many babies, for “procreation is beautiful, especially if we are devoted to the Revolution” (pp. 21-22).3

Consistent with this ideology, black male activists urged black women to stop using birth control. (Black Unity Party, 1968).

Thus, black feminists’ efforts to reclaim the black family and black motherhood occurred against the backdrop of both racist, antinatalist policies of the white majority and sexist, pronatalist ideology within the black nationalist movement. In response, black activists and feminist writers reconceptualized black motherhood as a positive politics of resistance to both racial and gender oppression. For example, black feminist writers recast the black matriarch as a symbol not of emasculation but of “maternal fortitude” (Umansky 1994, pp. 27-28). Distinct from black matriarchy, which wrongly conceptualized black women as having actual material power to govern the family or society, maternal fortitude reversed the logic of the castrating black matriarch, but it retained an emphasis on the family as the key to liberation. For example, black feminist writers such as Toni Cade Bambara (1970) pointed out that women’s strength had benefited entire African societies without emasculating their men. This focus on the strong African mother challenged Moynihan’s claim about black women’s emasculation of black men.

Angela Davis, in a famous essay she wrote from prison, refuted the notion of black matriarchy through a detailed historical analysis of slavery that demonstrated how society had misinterpreted as female dominance the “deformed equality of equal oppression” (1971, p. 8). Like black men, black women were expected to bear the burdens of slavery and the lash. As such, their “virtue” as women was never protected. Even motherhood did not improve their position. Yet, Davis argued, as mothers and nurturers inside slave quarters, enslaved black women enabled enslaved people to endure materially and spiritually. Significantly, “[i]n the infinite anguish of ministering to the needs of the men and children around her (who were not necessarily members of her immediate family), she was performing the only labor of the slave community which could not be directly and immediately claimed by the oppressor” (p. 7). Thus, the slave woman and black women more generally were not to be faulted for their power, which never really existed in the sense implied by Moynihan’s “black matriarchy,” but were to be recognized as revolutionaries (A. Davis 1971; White 1985).

This black feminist ideology recognizing the central role of black motherhood to racial resistance was distinguished from the pronatalist cultural position of black nationalism. It was achieved through a simultaneous assertion of the right of black women to control their fertility and to control their vision and practice of motherhood (Harden et al. 1968). In sum, although the tension between antiracism and pronatalism was present within black feminist ideology, it represented an acknowledgment of the agentic potential of black motherhood.

Resistance to dominant conceptions of black motherhood can also be found in the practice of “othermothering” in the black community (Collins 1987, pp. 4-5; Troester 1984, p. 13). Othermothers are women who assist blood mothers by sharing mothering responsibilities. They can be but are not confined to such blood relatives as grandmothers, sisters, aunts, cousins, or supportive fictive kin. Historically, othermothering has operated not only informally, but also through well-developed institutions and movements such as black churches (Gilkes 1986), black women’s clubs (Lerner 1974; Shaw 1991), black community service organizations (Edwards 2000; McDonald 1997; Naples 1992), and the black civil rights movement (Edwards 2000). According to black feminist writers, othermothers have formed one of the important bases of power within black civil society (Collins 2000).

Othermothering is credited with contributing to black survival, but its significance for women’s liberation is just as great. As a practice, othermothering threatens both patriarchal and capitalist norms. Most obviously, to the extent that othermothering is defined by women-centered, fluid, family-like networks that have different purposes—for example, socialization, reproduction, consumption, emotional support, economic cooperation, and sexuality, which may overlap but are not coterminous (Mullings 1997)—othermothering undermines the patriarchal family, the male-breadwinner ideal, and the notion of biological motherhood. Perhaps less obviously, it also threatens capitalist norms, for it moves away from the concept of children as the private property of individual parents (Collins 2000).

On an individual level, the experience of unconditional love has been especially important in the black parenting experience. Black children affirm their mothers; this affirmation is important in a society plagued by racism and the politics of black womanhood. As legal feminist Dorothy Roberts explains, “The mother-child relationship continues to have a political significance for Black women. Black women historically have experienced motherhood as an empowering denial of the dominant society’s denigration of their humanity” (2002, pp. 238). Alice Walker offers a glimpse of the positive liberatory potential of the black mother-child relationship:

[I]t is not my child who tells me: I have no femaleness white women must affirm. Not my child who says: I have no rights black men must respect.

It is not my child who has purged my face from history and herstory and left mystory just that, a mystery; my child loves my face and would have it on every page, if she could, as I have loved my own parents’ faces above all others . . . .

. . . .

We are together, my child and I. Mother and child, yes, but sisters really, against whatever denies us all that we are (1979, pp. 8, 42-50, 72-75).
In sum, black women activists and feminist writers have long recognized the potentially positive political power of family and community caregiving. This recognition flows not so much from material accounts of black women’s role in biological reproduction as from a conception of black women’s oppositional moral agency. Black women have expressed this moral agency not by rejecting care work—an untenable strategy given the importance of caregiving and the family to combating racial and economic oppression—but by practicing care consistent with antiracist, antisexist ideology.

B. Gay/Lesbian Care Practices

Gay men and lesbians also have long suffered state-sponsored discrimination with regard to their reproduction, sexuality, and family life (D’Emilio and Freedman, 1988; Eskridge 1999; Foucault 1978; Hunter and Polikoff 1976; Polikoff 1990). As in the race context, the state has effected this discrimination through the denial of substantial rights and benefits of citizenship. Gay men and lesbians have challenged this discrimination in part through their intimate relationships, not solely outside of them as traditional liberal theory would suggest. Given the possibility of a radical alternative to the hetero-patriarchal family presented by same-sex intimacy, the potential for political emancipation (as well as oppression) through family and intimate life is well understood by gay men and lesbians and by the larger society.

In the realm of family and intimate life, the state has relied on sexual orientation to deny gay and lesbian individuals sexual privacy, marriage and its benefits, child custody, alternative reproduction services, and adoption rights. Indeed, a core historical purpose of family law has been the promotion of heterosexual, monogamous marriage and patriarchal gender relations. For example, coverture, adultery, legitimacy, and other pre-1970s family regulations instituted procreative, heterosexual, patriarchal marriage as the American norm. Although constitutional litigation has resulted in the elimination of most de jure preferences for the patriarchal family (Lawrence v. Texas; Clark v. Jeter; Moore v. City of East Cleveland; Orr v. Orr; Eisenstadt v. Baird), it continues a robust de facto existence in the law. For example, family law, income security law, and tax law all privilege heterosexual, married individuals, especially men within heterosexual marital relationships (Fineman 1995; McCluskey 2003; Williams 1994). The marginalization and elimination of nonheterosexual, nonpatriarchal intimacy has been an essential corollary to this normalization project.

Certain themes emerge from this history that shed light on my central claim that transgressive caregiving may constitute a form of political resistance or expression. First, the state has sought to enforce compulsory heterosexuality through family law, rendering the family a key site of emancipatory struggle for gender and sexual nonconformists (Eskridge 1999; Polikoff 1990, 2000). The legal regulation of the family, through rules that seek to control the sexuality, reproduction, and parenting of gay men and lesbians, represents a central component of the state’s heteronormalization effort.

Second, the protection of children from “oversexed,” “predatory” gay men has been a recurring theme in the history of state regulation of same-sex intimacy and family life. (D’Emilio and Freedman 1988; Eskridge 1999). Indeed, social historians attribute the development of the concept of the “homosexual” in America around the turn of the twentieth century in part to cultural anxieties about the protection of the sexual innocence of children (Jenkins 1998). These anxieties translated into legal rules with both benign and harmful effects. Under the auspices of child protection, states adopted increasingly strict laws prohibiting child molestation and rape, but they also used child protection as a pretext for the widespread criminalization of adult, consensual, same-sex intimacy and the civil regulation of gay reproduction, adoption, and parenting (Eskridge 1999; Jenkins 1998). For example, until relatively recently, some states criminalized same-sex sexuality (Bowers v. Hardwick), no state recognized same-sex marriage (Baker v. Nelson), and express presumptions existed against child custody for gay or lesbian parents, particularly when a heterosexual parent sought custody (Roe v. Roe).

To be sure, there has been enormous progress in all of these areas in the past two decades (Kessler 2005, pp. 30-32). At the same time, it would be a mistake to conclude that gay men and lesbians have achieved full freedom or equality with regard to the law of domestic relations. The state continues to exercise significant regulatory control over same-sex intimacy and family life. For example, in custody disputes states now generally follow the “nexus” doctrine, which makes the sexual orientation of a parent irrelevant unless there is evidence that it will negatively impact the best interests of the child. However, courts still commonly deny gay and lesbian parents custody or visitation for other seemingly insufficient reasons, suggesting that there is still bias operating in custody disputes.4 For example, courts applying the nexus test commonly find a gay parent’s “lifestyle” sufficiently harmful to limit custody or visitation, especially if the parent resides with an intimate partner.5 And some states still explicitly retain a presumption against custody by an openly gay or lesbian parent6 or retain it as a factor in the best interest determination.7 Such rules and decisions effectively operate as a “don’t ask, don’t tell” policy in the context of custody law.

Although relatively early and widespread acceptance of second-parent adoption8 for gays and lesbians is a hallmark of the American gay rights movement (Polikoff 2000), increasing anxieties over same-sex marriage beginning in the 1990s fueled renewed attention on preventing lesbians and gay men from adopting. From 1994 to 1999, four states enacted prohibitions on second-parent adoption by same-sex couples;9 four additional states embraced similar prohibitions in the early part of this decade.10 For example, in 2002 a Nebraska court denied a petition by two mothers to have the nonbiological mother adopt their son, even though she had helped to raise him from birth, was his primary caretaker, and demonstrated “remarkable parenting skills.” (In re Adoption of Luke, p. 378). In 2000, the Utah legislature passed a law restricting adoption to married couples and unmarried individuals not cohabiting in a sexual relationship (Utah Code Ann. § 78-30-1). Although not formally stated, its purpose was widely perceived as the exclusion of gay men and lesbians from adoption in a manner that would withstand constitutional attack (Romer v. Evans). In contrast, every state in the country except Florida permits gay, lesbian, and bisexual persons to petition individually to adopt children (Lambda Legal, 2005), evidencing the existence of a “don’t ask, don’t tell” policy in the context of adoption as well as custody.

The Supreme Court’s recent decision in Lawrence v. Texas decriminalizing private, consensual sodomy on substantive due process (constitutional privacy) grounds has thus far had little impact on state-sponsored discrimination against gay men and lesbians in the area of parental rights. For example, in 2004 gay foster parents Steven Lofton and Roger Croteau failed in their constitutional attack of Florida’s statutory ban on adoption by gay people (Lofton v. DCFS). The court upheld the law, even though Lofton and Croteau were the only parents of their foster child, Bert, since he was an infant. Similarly, an Alabama court held in 2004 that Lawrence did nothing to disrupt that state’s presumption against child custody for gay parents, transferring custody from a lesbian mother to a heterosexual father (L.A.M. v. B.M.).

And, of course, same-sex marriage is still illegal in all but one American state (Goodridge v. Department of Public Health), with an enormous backlash developing in the wake of the Massachusetts decision, America’s 2004 “winter of love,”11 and earlier victories (Baehr v. Lewin; Baker v. State). For example, in 1996, Congress passed the Defense of Marriage Act,12 defining marriage as a union between a man and a woman for federal purposes (e.g., Family and Medical Leave Act leave, federal taxes, Social Security benefits) and relieving states of any obligation to recognize, under the Full Faith and Credit Clause,13 a same-sex marriage validly entered into in another state. Along the same lines, after the Massachusetts decision legalizing same-sex marriage, the 2004 election season saw thirteen states newly amend their constitutions to define marriage as a union between one man and one woman (Kessler 2005, p. 36).

Within the context of this history, the meaning of sexual intimacy, parenting, and family life to gay men and lesbians takes on particularly acute political meaning. Sex, reproduction, and parenting—realms traditionally associated with the private family sphere within traditional liberal discourse—may constitute practices of conscious, political resistance to subjugating legal (and other) narratives. This account is in tension with some feminist and queer legal discourse, which has framed an individual’s decision to remain partner- or child-free as an important form of resistance to the patriarchal family. But a categorical rejection of the transformative potential of care work and parenting does not sufficiently recognize the history of state-sponsored discrimination in the realm of gay family life or the radical challenge to heterosexual reproduction and family relations posed by same-sex intimacy.

The notion that gay care practices may constitute a positive, political practice of resistance is supported by a significant body of social science research. To paraphrase anthropologist Kath Weston, “gay families we choose,” including families in which children are present, represent opportunities for a radical departure from conventional understandings of kinship (1991, p. 2). A gay family of choice may include lovers, ex-lovers, friends, co-parents, and children brought into the family through adoption, foster care, prior heterosexual relationships, and alternative reproduction (Weston 1991).

The AIDS epidemic provides a specific example of how chosen families and gay communities are co-constitutive. John-Manuel Andriote, in his exploration of how gay culture was reshaped by the disease, notes that “[w]hen AIDS first struck gay men, in 1981, activists quickly rallied to share information, provide services, raise money, prevent new infections, and demand assistance from a skittish federal government” (1999, p. 1). Support groups and “buddy programs” were organized throughout the country (p. 109). Volunteer “buddies” helped out with grocery shopping, cleaning, cooking, and emotional support. This impressive generosity and volunteerism served to sustain many men whose families had alienated them and friends had stopped calling.

The AIDS epidemic also opened new possibilities for imagining lesbians and gay men as members of a unified community. In the words of one lesbian activist, “People used to say to me all the time, ‘Why do you work with AIDS and GMHC [Gay Men’s Health Crisis]? They wouldn’t work for breast cancer.’ . . . That’s partly true—but what did it have to do with the fact that all my friends were dying?” (p. 117).

Like the tradition of othermothering within the black community, gay families of choice are made up of fluid networks that have different purposes—including emotional support, economic cooperation, socialization, reproduction, consumption, and sexuality—which may overlap but are not necessarily coterminous (Weston 1991). The willingness of gay men and lesbians to care for each other in sickness and in health has been central to the success of their bids over the last quarter century to recognition and dignity as a community and as couples. Such families of choice also undermine the defining features of the hetero-patriarchal family: heterosexual sexual relations, the male breadwinner ideal (and the sexual division of family labor on which it rests), and biological reproduction.

The addition of children to gay families of choice does not necessarily diminish their transformative potential. Although viewing childlessness as form of resistance to patriarchy is a strong theme within certain strands of feminist and queer theory inside of law (Case 2001; Franke 2001a; Quinn 2002; Schultz 2000), researchers of gay and lesbian families within the social sciences have demonstrated how lesbian parenting may also “represent[] a radical and radicalizing challenge to heterosexual norms that govern parenting roles and identities” (Dunne 2000, p. 11)

For example, according to sociological studies, lesbian parenting is characterized by a more egalitarian division of household labor than heterosexual families (Blumstein and Schwartz 1983; Dunne 2000; Mitchell 1995; Reimann 1998; Sullivan 1996, 2004; Weston 1991); the detachment of motherhood from its biological roots through social motherhood (Dalton and Bielby 2000; Dunne 2000; Sullivan 2004); the inclusion of known sperm donors in some cases who actively co-parent, becoming a “junior partner in the parenting team” (Dunne 2000, p. 25); and the involvement of social kin in children’s lives (Dunne 2000; Nelson 1999). As one mother stated, “Our close friends really drew in and became aunties. It’s like it created an extended sort of family with a lot of our friends. Astrid [our daughter] has many aunties” (Nelson 1999, p. 39). Psychologists have observed the potentially restorative, affirming effect of parenthood for gay men and lesbians. Children affirm their gay and lesbian parents; this affirmation is important in a society plagued by homophobia (Glazer 2001).

Finally, gay and lesbian care practices may have powerful political effects irrespective of individual political consciousness. This is because identical symbols can carry very different meanings in different contexts. (Butler 1990, 2000). By disconnecting family formation and reproduction from heterosexual relations, extended gay kin networks and gay parenthood reveal heterosexuality and biology to be mere symbols of a privileged relationship. To the extent that these symbols still constitute the central organizing principles of family law, then, same-sex intimacy serves as a powerful destabilizing force against the law itself. As such, care can be deeply transgressive and possess significant political potential. This account of care as a positive politics contrasts with dominant accounts of care within certain strands of feminist and queer legal theory. This conception of political activism also varies from traditional liberal conceptions of politics because it transforms the private sphere of the family into a site of political resistance. This idea has much to offer to the discourse over care work within feminist and queer legal theory.

C. Care Practices of Men

Workplace norms and the broader cultural “male breadwinner ideal” work in tandem to discourage many men from partaking in caregiving work. (Dowd 2000; Kimmel 1996; Malin 1994; Williams 2000). Although a comprehensive review of the law’s role in disciplining men out of caregiving roles is not possible here, a few contemporary examples from employment discrimination, family, and other areas of law are illustrative.

Significantly, the Supreme Court’s 2001 decision in Nevada Department of Human Resources v. Hibbs recognized our country’s history of employment discrimination against men with regard to family care work. The plaintiff sought leave under the FMLA to care for his ailing wife, who was recovering from a car accident, experiencing chronic pain and suicidal tendencies, and waiting to undergo neck surgery. His employer terminated him before he exhausted his leave. He lost at the trial level.

Justice Rehnquist, in his decision reinstating Hibbs’ claim and upholding the FMLA, found that Congress’s passage of the FMLA was justified on the basis of our country’s long history of workplace discrimination against women, but he also emphasized the continued relevance of stereotypes against men: “Stereotypes about women’s domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman’s domain, they often denied men similar accommodations or discouraged them from taking leave.”14

The employment context nicely demonstrates society’s devaluation of men’s family care work, but perhaps the most compelling context in which to study this phenomenon is in the realm of family law. As Nancy Dowd’s (2000) research on the status of fathers within the law persuasively has shown, family law has largely conceived of fathers as the owners of children or as family breadwinners, but support for the nurturing aspect of fatherhood is very limited. For example, the law of paternity defines fatherhood “by the status it can confer upon children, rather than in terms of responsibilities, obligations, relationship, or nurturing” (Dowd 2000, p. 5). For most of the twentieth century, states presumed men unfit to serve as custodians of children in the absence of a child’s mother (Stanley v. Illinois; Ex parte Devine). Although the law has moved dramatically in the direction of shared parenting after divorce (ALI Principles 2002, § 2.08),15 joint physical custody is still quite rare and most custody and visitation schemes assume only a limited fathering role (Dowd 2000). After divorce, men are treated by the law primarily as economic providers, even though most men do not fulfill even that role.

The welfare context, too, illustrates the law’s role in disciplining men out of family caregiving roles. Historically, the welfare system was intended to support the family caregiving of women. Men were presumed able to work, and the public welfare system for men was designed primarily around their links to the workforce in the form of unemployment, income security, and worker’s compensation insurance (Dowd 2000; Gordon 1994). Although these latter social insurance systems provide significantly greater benefits, come with fewer conditions, and are generally considered “entitlements” in our society, the gendered bifurcation of the public welfare state in America also evidences the disfavored status of caregiving men within the law.

Two recent Supreme Court decisions further highlight the construction of men as inauthentic family caregivers within the law. In 2001, the Supreme Court upheld the constitutionality of a statute giving immigration preference to children born abroad to unmarried American mothers, but not to unmarried American fathers (Nguyen v. I.N.S.). The plaintiff was a nonmarital father who had raised a child abandoned by his foreign mother. The Court justified the sex-based rule—and the son’s deportation—because “[i]n the case of a citizen mother . . . the opportunity for a meaningful relationship between citizen parent and child inheres in the very event of birth . . . . The same opportunity does not result from the event of birth . . . in the case of the unwed father.”16

In 2004, the Supreme Court rejected a father’s First Amendment challenge to the policy of his daughter’s public elementary school requiring teacher-led recitation of the Pledge of Allegiance (Elk Grove Unified School District v. Newdow). Demonstrating an astonishingly technical reading of custody law, the Court held that only the child’s mother had standing to challenge the policy, even though the parents shared joint legal custody and the father had a strong presence in his daughter’s life (Dowd 2005), because the family court order granting custody had stated that the mother “will continue to make the final decisions . . . if the two parties cannot mutually agree.”17

In sum, when men engage in care work—even men in traditional marriages with relatively traditional gender patterns—they resist the male breadwinner ideal, the current structure of the workplace, and the continued construction of men as inauthentic caregivers within family and social welfare law. Thus, again, we see that family caregiving may be subversive of patriarchy when manifested in the form of transgressive care practices. This transgressive caregiving story is contrary to the dominant feminist accounts of care work, which will be discussed in Part III.

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