Contextualizing Menopause in the Law

Abstract

“It is horrendous, but then it’s magnificent,” says one character about menopause in an episode of the 2019 Netflix comedy Fleabag. Her younger interlocutor is incredulous at this proclamation. That younger character, and even the audience, may be somewhat taken aback by this frank discussion. After all, menopause is not a subject that is commonly discussed, let alone praised. Whether among friends, acquaintances, or colleagues (fictional or not), silence about menopause is more likely the norm. This is true in the law, too. The law mostly ignores menopause.

The law’s silence about menopause is linked to a broader cultural silence about the inevitable consequences of the aging process. It is also linked to longstanding silence and stigma around the menstrual cycle. A growing menstrual advocacy movement, however, has begun to chip away at stigmas and shame surrounding menstruation, in the course of pursuing policy and legal changes that make menstrual products more affordable and available. This Article imagines a role for the law in addressing challenges faced by those transitioning to menopause, whether in the workplace or beyond. It considers why that has not yet occurred, and explores the possible contours of a future legal landscape.

To inform this analysis, the Article situates its discussion of menopause in a broader context: the socio-legal treatment of pregnancy, breastfeeding, and menstruation. By viewing the four reproduction-associated conditions or processes together, rather than in silos, it is possible to discern a hierarchy of favorable treatment, with breastfeeding and pregnancy at the top, trailed by menstruation, and with menopause at the bottom. The Article also highlights a connective thread across these processes: law’s abnormal/normal binary often maps uneasily onto them.

Ultimately, the Article argues that the law should move beyond individual one-off accommodations for “abnormal” manifestations of these conditions. The law should instead recognize and incorporate protections for the broad spectrum of what can be considered “normal” experiences. Such an approach challenges the abnormal/normal dichotomy and is necessarily part of a larger scholarly dialogue that challenges binary thinking about gender and disability. By chipping away at the stigma surrounding menopause, this Article seeks for menopause a socio-legal solicitude equal to the one that exists for breastfeeding and pregnancy and that is beginning to emerge for menstruation.

Keywords: health, menopause, gender, feminist legal theory