Chapter 2 provides an overview of caregiver discrimination in the workplace. It provides a history of the gendered norms that still affect our workplaces and our lives. It describes the three facets of what I call the “caregiver conundrum”—(1) not enough time; (2) not enough money and opportunities for advancement; and (3) the stereotypes affecting caregivers in the workplace. The chapter then discusses several “lackluster laws” that fail to provide sufficient protection for working caregivers. These include Title VII of the Civil Rights Act of 1964, which protects against sex discrimination; the Pregnancy Discrimination Act, which protects against discrimination based on pregnancy; and the Family and Medical Leave Act, which mandates job-protected leave in certain circumstances. This chapter demonstrates how inadequate the protections are for most workers who are trying to balance work and family, despite these three laws.

In Smith v. Rasmussen, an Eighth Circuit case from 2001, the original opinion upheld Iowa’s Medicaid ban on coverage for gender confirming surgery, finding it was reasonable and consistent with the federal Medicaid Act. Craig Konnoth’s feminist rewrite finds that the ban on gender confirming surgery is discriminatory on its face and impermissibly relies on gender stereotypes because it permits coverage of particular procedures for individuals perceived as sufficiently cisgender—such as those who are intersex but have conformed to expectations associated with their sex assigned at birth—but not for others. Konnoth draws on empirical research showing that enforcing gender roles in this context seeks to prevent men from debasing themselves as women and to prevent women from claiming the privileges of men. Heather Walter McCabe’s commentary highlights how litigation related to transgender issues reveals the socially constructed nature of gender and provides useful insight into how gender and sex relate to each other and to theories of antidiscrimination.

Reynolds v. McNichols is a 1973 opinion from the Tenth Circuit Court of Appeals. Although the plaintiff was never convicted of prostitution or diagosed with an infection, she was held, examined, and involuntarily treated for sexually transmitted infections under the city of Denver’s “hold and treat” ordinance. The Tenth Circuit rejected her due process and equal protection challenges to the ordinance. In her feminist rewrite, Professor Wendy Parmet questions the health officials’ assumptions that female sex workers are “the primary source of venereal disease” and that the city can only protect the public’s health by forcibly treating them. She holds that the application of the ordinance to the plaintiff was discriminatory and that, under the circumstances, the defendants’ forced treatment of the plaintiff violated her right to privacy and their failure to obtain a warrant before forcing her to submit to a medical examination or remain in detention constituted an unreasonable search. In her commentary, Professor Aziza Ahmed situates the case in terms of historical responses to sex work under the banner of public health.

The Fair Work Act 2009 (Cth) also prohibits discrimination in employment based on a protected attribute such as ‘race, colour, sex, sexual orientation, age, physical or mental disability, marital status, family or carer’s responsibilities, pregnancy, religion, political opinion, national extraction or social origin’ (s 351(1)). The discrimination on the basis of religion may be permissible in faith-based non-government schools and is discussed further in this chapter.

Chapter 2 demonstrates how the US Supreme Court could have used the feminist technique of storytelling by rewriting Desert Palace v. Costa from the perspective of the plaintiff, who received a jury verdict in her favor in the district court. The feminist judgment corrects the Supreme Court’s willingness to allow the defendant to write the plaintiff’s story by detailing the egregious facts in the case that shed light on the gendered treatment she suffered – treatment that included repeated severely hostile behaviors among her coworkers and differential treatment by her supervisors. The rewritten opinion gives the reader a significantly different view of the case from that offered by the original opinion. The rewritten opinion demonstrates that the feminist method of storytelling illuminates the ways in which the facts occurred in the real world, and in doing so creates a counterbalance to the supposedly “neutral” and “objective” view that the Court originally presented.