This Essay explores the dynamics between parental leave policies and the enforcement of legal equality in the United States and other jurisdictions. In so doing, it clarifies and redefines a feminist jurisprudence of family leave. A feminist approach to family leave should advance a substantive vision of gender equality, ‘a more egalitarian relationship at home and at work,’ in Justice Ginsburg’s words. Recent antidiscrimination challenges to parental leave policies in the United States and Europe advance the understanding that the law should always paternity and maternity leave should be equal in time and pay. This paper considers and critiques this proposition in light of the dynamics of leveling down maternity leave, which in turn may undermine women’s full participation in economic citizenship.
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