Originally posted on Feministing

The Supreme Court refused to consider the case of Angela Ames, a woman who was forced to quit her job because she needed to breastfeed, deciding that firing a woman for breastfeeding isn’t discrimination because men can lactate. The argument may sound progressive and inclusive, but
it’s the total opposite.

When Angela Ames returned to work at the Nationwide Insurance Company after her maternity leave, she found another employee’s belongings in her workspace. She needed to pump breast milk for her child but was denied access to the lactation room because the company needed three days to process the paperwork. Unfortunately, nobody had bothered telling Ames about this lengthy lactation-room-admissions policy before she came back to work. She tried to express milk in a “wellness room,” but it was occupied. By this point, Ames, who had been unable to express her milk, was in pain and had started leaking. When she asked her supervisor where she could pump, he responded, “Just go home to be with your babies.” And then, like the chivalrous, selfless prince that he is, dictated her letter of resignation.

Ames tried to sue over what seems to be obvious pregnancy and gender discrimination. But in March 2014, the Eighth Circuit Court decided that she had not met the legal burden of showing that her treatment was so bad that any reasonable person would have resigned. Because, a reasonable person would totally tolerate the humiliation of having someone else’s stuff in their workspace, being denied access to a place she can nurse, being in pain and leaking, being told to go be with their babies, and then having their letter of resignation written for them.

But here’s the kicker! The Eighth Circuit was refusing to overturn an earlier decision, which also sided with Nationwide in 2012. This ruling said that if Ames had, indeed, been fired over her needing to breastfeed, that wouldn’t constitute pregnancy-related discrimination, anyway. Want to know why? Because you don’t have to be pregnant to lactate. Nor do you have to be a woman. As the Court wrote in its decision, “It is a scientific fact that even men have milk ducts and the hormones responsible for milk production.”

Now, this may sound like a progressive inclusive point. But let’s not kid ourselves. This is about refusing to recognize blatant discrimination, not about challenging the gender binary. As the ACLU’s Galen Sherwin wrote on Monday,

It’s certainly important to acknowledge that some men (including some trans men) can and do lactate. But it should also be self-evident that firing someone because they are breastfeeding is still a form of sex discrimination, and one that is all-too-frequently experienced by new mothers.

Sherwin also points out that finding loopholes to justify discrimination has a long and rich history.

The court’s reasoning in this case echoes old Supreme Court pronouncements that discriminating against pregnant women at work isn’t sex discrimination because both men and women can be non-pregnant. Congress long ago rejected this ridiculous reasoning when it passed the Pregnancy Discrimination Act. It’s disheartening to see it resurface again.

As Sherwin also explains, this case,

shines a harsh light on the multi-layered workings of structural discrimination: Workplace policies that don’t make space for the realities of pregnancy and motherhood, employers’ entrenched sex stereotypes and implicit bias, and courts that — despite decades-old legal protections — still manage to turn a blind eye to the pervasive discrimination faced every day by working women.

This isn’t just sanctioned discrimination. This is institutionalized.