The notion that sex matters, in terms of the law, is a fairly new one. It wasn’t until recently that discrimination against pregnant women was considered to be discrimination against women, specifically. In 1974, an American court case, Geduldig v. Aiello, determined that differential treatment based on pregnancy only distinguishes between a group consisting of “pregnant women” and a group consisting of “nonpregnant persons.” In other words, this type of discrimination was considered only to be discriminatory against those who are pregnant, rather than against those capable of giving birth — i.e. females. “Nonpregnant persons,” is, of course, not sex specific…
We know today, thanks to the work of feminists, that women have been discriminated against in a myriad of ways — notably in the workplace — on account of their assumed ability to become pregnant, regardless of whether or not they actually were pregnant, at that moment. In her paper, “Pregnant ‘persons’: the linguistic defanging of women’s issues and the legal danger of ‘brain sex’ language,” Andrea Orwoll addresses the danger of linguistically erasing women as a class from the law, all the while incorporating sex stereotypes into it. She writes:
“The language of the law should acknowledge and constitutionally protect real, biological sex differences precisely because they are real: because they are based in the body — the only plane of reality that the law can effectively govern—and because they have historically imposed, and continue today to impose, material consequences on women. At the same time, the law should refuse to participate in the ages-old practice of stereotyping and disenfranchising the female sex based on assumed mental capacities.”
Andrea is a first-year attorney and an alumna of William S. Boyd School of Law (magna cum laude) and Whittier College (summa cum laude). In this episode, I speak with her about the history of women-centered language in law and why it still matters.