One of the most striking ideas that Edward J. McCaffery suggests in Taxing Women is that equality, of the right sort, must be thought of in gendered terms. We must relinquish the idea that we can find or declare some neutral principle that will achieve the goal of equality, particularly with respect to the relationship between work and family, because the social context makes it impossible. Rather, we need to devise gender-specific strategies to achieve equality, even if they are couched in gender-neutral language. In my recent work examining single parent families, I have come to much the same conclusion: meaningful support for single parents, albeit extremely unlikely in the present political climate, requires separate consideration of the needs of single mothers and single fathers. The dominant patterns of work and family for single mothers and fathers are remarkably distinct; thus, their greatest needs are quite different. Single mothers most need economic support for nurturing, while single fathers most need cultural support for a reconstructed notion of fatherhood. McCaffery similarly argues that in order to achieve work-family equality, married women need to have their wage work taxed less, while married men need to have their wage work taxed more.
This essay discusses some of the equality issues generated by McCaffery's revolutionary yet modest gender-specific proposal for tax reform. In addition to considering some potential consequences for women and men, I also briefly consider the perspective of children.
The essay proceeds in the following manner: Part I concentrates on McCaffery's proposal to eliminate gender bias in the tax structure by taxing women less so that it is in accord with widely accepted notions of formal equality. Part II focuses on McCaffery’s argument that we should "tax men more, precisely on account of their insistence on working as they always have and precisely until their behavior, in the aggregate, becomes as variable and susceptible to social and other pressures as women's behavior is.” Part III discusses children’s equality and how the removal of gender bias and redistribution of workforce responsibility is presumed to be to children’s benefit. Finally, Professor Dowd concludes by recommending society takes a look at McCaffery's proposal from the perspectives of women's, men's and children's equality and consider how that complicates the analysis further by considering the separate interests of inherently connected groups.
Nancy E. Dowd, Women's, Men's and Children's Equalities: Some Reflections and Uncertainties, 6 S. Cal. Rev. L. & Women's Studies 587 (1997), available at http://scholarship.law.ufl.edu/facultypub/452