Introduction for Hot Flash

INTRODUCTION

This book has its origins in the first-ever law school symposium on menstruation held in 2021.¹ Two of us (Emily Waldman and Bridget Crawford) planned that conference as we were finishing the manuscript for a book that analyzed the many ways that menstruation intersects with all aspects of the law, including tax, education, employment law, prisoners’ rights, poverty law, and the environment. When Naomi Cahn proposed a conference paper outlining a research agenda centered on menopause—clinically defined as the absence of menstruation for twelve months in someone who previously menstruated—it was immediately obvious that menopause is a significant part of the same picture and also presents its own distinct issues. The three of us embarked on a series of conversations and collaborations that ultimately became this book.

To be frank, none of us could have predicted that we would devote so much of our professional attention to the subject of menopause. Each of the three of us—cis women in our 40s, 50s, and 60s—had internalized to a certain extent the cultural expectations of silence and stigma associated with the aging female body. Up until recently, our anecdotal experience has been that menopause was one of the last great taboo topics—not typically the subject of conversation, even among close friends or family members, and certainly not at work. To the extent menopause was ever mentioned, it was often as part of a joke about middle-aged women.

So, we were not surprised when our announcement that we were writing a book about menopause generated more than a few raised eyebrows and quizzical glances from colleagues. Yet based on our individual areas of expertise including employment law, antidiscrimination law, family law, aging and the law, business and tax law, and feminist legal theory, we realized how much the law needs to change to take menopause into account. After all, approximately half the population will experience menopause during their lifetimes, and yet law mostly does not acknowledge the topic.

This book is part of a growing movement to change the silent approach to menopause. It turns out that we are writing the book at an opportune time: U. S. culture seems to be at an inflection point regarding menopause. Menopause is becoming more visible in popular media, such as in Michelle Obama’s podcasts, under headlines like Glamour’s “10 Celebrities Who Have Spoken Out About Menopause,”² or in a session of Oprah Winfrey’s “The Life You Want” subscription-only class featuring Drew Barrymore, Maria Shriver, and two doctors doing a “deep dive” on perimenopause and menopause.³ The US government is undertaking new initiatives. Stories about ordinary people’s experiences with menopause are appearing with regularity, too. And an increasing number of for-profit companies are selling products to address menopausal symptoms. Admittedly, though, this catalogue of menopause mentions reflects one of the occupational hazards of writing a book about menopause: we now notice the subject everywhere.⁴

Menopause is having a moment—or lots of moments, it would seem. In helping to create more moments for menopausal awareness, we started this project by looking at the law. Our initial guiding questions included: How have menopausal silence and stigma contributed to the conditions in which bias and discrimination can flourish in the workplace, doctors’ offices, scientific research, and even courts of law? What role can the law play in breaking the silence and stigma? Of the many ways that menopause matters in everyday life, where and how is the law best able to effectuate change? In conducting our research, we uncovered how law frequently reflects and then reinforces cultural, social, and political currents. Understanding those currents is the starting point for mapping the way forward for legal change. Accordingly, our new guiding question became: How can a better understanding of menopause improve life and law for everyone?

To be sure, menopause is an extremely complicated topic. Our central inquiry is grounded in the belief that all people—not just those who will personally experience menopause—can benefit from learning more about the ways that menopause affects individuals, workplaces, health care, and society. Understanding menopause’s multiple intersections with everyday life and law is crucial to achieve a more robust economy and inclusive society.

The book situates menopause uniquely at the intersection of gender, aging, medicalization, and disability—acknowledging that gender is complex, that not all menopause is age-related, that treatment for menopause’s symptoms is often needed, and that menopause itself is not a disability. In the past, menopause was often viewed as a problem or condition depriving older women of some sort of feminine essence. The “cure” came in the form of hormonal treatments touted as both restoring women’s femininity and preventing disease. Indeed, during the second half of the twentieth century, such hormone therapy became widespread in the United States. But that came to a crashing halt when, in 2002, the National Institutes of Health (NIH) suddenly announced that it was stopping its large-scale study of one type of menopausal hormone therapy due to concerns about breast cancer, heart disease, and other serious risks.⁵ Recently, the tide has turned back in favor of hormone treatments and a more nuanced understanding of the data from the NIH study. But there is still a great deal that scientists, doctors, and members of the general public do not know about menopause or how to address its many symptoms, which can range from unnoticeable for some people to outright debilitating for others. Especially given the variability in experiences with menopause, there is still much to understand. Race and other identity factors often affect the experience, diagnosis, and management of menopause. In situating menopause as part of the reproductive lifespan, the book’s goal is to draw in, and draw on, those interested more broadly in the relationship between biology and equality by showing how menopause provides an entrance point for exploring issues of gender, culture, equity, and medicalization.

STRUCTURE AND ORGANIZATION OF THIS BOOK

Chapter 1 sets out the framework for the remainder of the book. It provides a basic overview of the biology of menopause. It then describes the three main themes that run throughout the book: the importance of dismantling the stigma and silence around menopause; the need to develop a more nuanced understanding of menopause; and the importance of law and legal reforms in ensuring that menopause is treated as an accepted and recognized part of the life course of approximately one-half of the population.

Chapter 2 delves into cultural tropes and stereotypes about menopause. The chapter begins with a look at how menopause has been portrayed in the media and literature and moves on to discuss societal and personal attitudes toward menopause. Generally speaking, menopause is negatively stereotyped and stigmatized, but there are some people who experience menopause as a liberating experience. Indeed, research shows that both societal attitudes and subjective experiences of menopause tend to vary across different countries and groups within those countries, emphasizing the need for more research on the ways that both culture and identity may shape the experience of menopause.

Chapter 3 turns to the questions and controversies that dominate medical discourse around menopause in the United States, focusing on the historic development of “cures.” The very idea that menopause might need a cure suggests that this inevitable life stage is a problem or illness. Acknowledging that some people do experience severe physical, psychological, and cognitive symptoms, the basic notion that menopause requires medical intervention sounds in ageism. In one sense, medical treatments for menopause can be understood as akin to technologies like hair dye, plastic surgery, Botox, and the like that may be invoked as part of an effort to appear more youthful. At another level, though, medical treatments like menopausal hormone therapy should be understood as providing necessary relief to those who experience symptoms that may range from troublesome to severely hindering.

Chapter 4 turns its focus to the workplace, a common site of discrimination based on menopause. Drawing on actual cases, the chapter identifies the main categories in which claims arise for menopause-based discrimination in the workplace: discrimination based on menopausal stereotypes (e.g., when a supervisor repeatedly jokes about whether a particular employee is having hot flashes), discrimination based on menopause-related symptoms (e.g., when an employee is punished for unexpected perimenopausal bleeding), and a lack of reasonable accommodations (e.g., when a menopausal employee is not allowed to deviate from a dress code that exacerbates hot flashes). U.S. law is largely undeveloped in this area and provides remedies in only a narrow swath of cases.

Chapter 5 considers how U.S. workplaces might evolve to take into account the needs of menopausal employees, drawing on the approach to menopause in the United Kingdom. The chapter argues that employment discrimination law should be expanded to provide legal protections for menopause that are akin to those available for pregnant and breastfeeding workers. The law should do more than merely protect against the most egregious and blatant instances of discrimination. Furthermore, this chapter identifies steps that employers can take on their own to ensure that menopause does not unnecessarily limit the ability to remain and succeed at work.

Chapter 6 centers on the experiences of queer, trans, and gender diverse people. Not all who experience menopause are “women” and not all who experience menopause are those who have sexual or romantic attachments to cisgender men (or anyone at all). This chapter centers the voices of trans and gender diverse people, as well as lesbians and bisexual women of all gender identities, to offer firsthand accounts of experiencing and managing menopause. As is true for cis heterosexual women, the menopause experience for queer, trans, and gender diverse people is not uniform. Some experience it as a time of liberation; others experience menopause as an unwelcome reason to focus on their bodies.

Chapter 7 situates menopause in the larger culture of commerce that occurs in both physical and digital products. Menopause is not only an inevitable biological process but also a profitable business opportunity that has resulted in a growing array of menopause-related products and services including hormonal treatments, skin care, vitamins, clothing, and personal appliances. Digital technology companies market telehealth and peer support apps. We take a skeptical approach to what we label “menopause capitalism”—the marketing and selling of menopause-related products or services through messages that celebrate autonomy, community, or stereotypical femininity by entities that are, at their core, commercial enterprises. To be sure, many menopause-related products and services are beneficial. Increased access to hormone therapy, the development of new treatments, easier tracking of symptoms, and even some of the new merchandise means that more people can get help and support. But, as the chapter shows, the products do not necessarily deliver on their promised outcomes. There is also a particular need for greater legal protection for private health information that consumers voluntarily enter into health apps generally and menopause apps specifically.

Chapter 8, the final chapter, explores the conceptual and pragmatic challenges to reforming the contemporary approach to menopause in the United States. On the one hand, it is axiomatic that all people should receive equal treatment under the law. On the other hand, this book demonstrates the many ways that, in the case of menopause, the failure to take into account biological differences can be an obstacle to many people’s health, well-being, and full participation in the workforce. To achieve meaningful reform, it is necessary to be more explicit and intentional about societal approaches to menopause, recognizing the tension between sameness and difference and also taking into account how menopause intersects with sex, age, disability, race, and gender. Advocates for menopause-related law reform may be able to win support from the business community by emphasizing the economic and psychological losses associated with menopausal employees leaving the workforce. We suggest lessons for menopause from disability rights advocacy, too—even though menopause is not a disability—and the goal of designing accommodating environments for everyone. Furthermore, we connect menopausal discrimination to age-based discrimination and the menstrual equity movements. All of these links can facilitate greater cooperation among those who are interested in making sure that menopause is not used as a vector of discrimination.

The topic of menopause takes on particular salience when viewed in the context of other reproduction-associated conditions and processes, especially those often shrouded in silence, from menstruation to infertility to miscarriage to abortion. The Supreme Court’s opinion in Dobbs v. Jackson Women’s Health Organization,⁶ which overruled Roe v. Wade,⁷ has brought reproductive life to the fore of national politics in a new way. To us, menopause is one part of that reproductive life. Knowledge and bodily autonomy are key elements of a more just and equitable society.

NOTE ON LANGUAGE

Throughout this book, we deploy the words “trans” and “gender diverse” in the same way as the World Professional Association for Transgender Health does: to describe people who are “member[s] of the many varied communities globally of people with gender identities or expressions that differ from the gender socially attributed to the sex assigned to them at birth.”⁸ We use “queer” broadly throughout the book to refer to sexual orientations like lesbian, gay, bisexual, and asexual. In short, we use “queer” as an umbrella term for the many sexual orientations beyond heterosexual.⁹

In talking about menopause, it is important to use language that does not pathologize or “other” queer, trans, and gender diverse people. We strive throughout the book to chart a course for an inclusive and effective discourse around menopause. Nonetheless, there are times when we refer to “women’s” experiences with menopause because we are describing older research that did not account for a full range of gender identities in surveyed populations, for example, or because another original source does. Indeed, we recognize that a particular context may require a speaker to talk about “women” and menopause to make themselves understood. Moreover, menopause has been understood as a gendered experience; we recognize that its treatment (and dismissal) by law, culture, and medicine is a reflection of that understanding and even misogyny at times. This book seeks to unpack and remedy the gender bias that drives stigma, shame, stereotypes, and ignorance about menopause. That being said, any such essentialism must necessarily be provisional and tentative. All people should have expanded protections against discrimination on the basis of menopause.

This book reimagines law and society to take into account the biological needs of all people. We invite you to consider the many intersections of menopause and the law in places ranging from the privacy of one’s own bedroom to the doctor’s office, workplace, and beyond.

Notes

1. See Bridget Crawford, Origins of “Are You There, Law? It’s Me, Menstruation” (Columbia Journal of Gender & Law Symposium, April 2021), FEMINIST L. PROFESSORS (Apr. 26, 2021), https://perma.cc/MAH8-RB4L; see generally JUDY BLUME, ARE YOU THERE GOD? IT’S ME, MARGARET (1970) (the inspiration for the symposium).

2. 10 Celebrities Who Have Spoken Out About Menopause, GLAMOUR (Oct. 5, 2020), https://perma.cc/LN85-4KRM.

3. Watch Now: “The Menopause Talk” with Oprah, Drew Barrymore, and Maria Shriver, OPRAH DAILY (Apr. 5, 2023), https://perma.cc/J2EB-RDCD.

4. See, e.g., Sumathi Reddy, The Surprising Good News on How Menopause Changes Your Brain, WALL ST. J. (June 14, 2021), https://perma.cc/RX4J-9DTU; Amy Larocca, Welcome to the Menopause Gold Rush, N.Y. TIMES (Dec. 20, 2022), https://perma.cc/9H26-DSWP.

5. See Largest Women’s Health Prevention Study Ever—Women’s Health Initiative, OFF. ON WOMEN’S HEALTH, U.S. DEP’T OF HEALTH & HUM. SERVS., https://perma.cc/PX3D-WP3M (summarizing results of 2002 study); see also Writing Group for the Women’s Health Initiative Investigators, Risks and Benefits of Estrogen Plus Progestin in Healthy Postmenopausal Women: Principal Results from the Women’s Health Initiative Randomized Controlled Trial, 288 J. AM. MED. ASS’N 321 (2002).

6. Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022).

7. Roe v. Wade, 410 U.S. 113 (1973).

8. Edmond Coleman et al., Standards of Care for the Health of Transgender and Gender Diverse People, Version 8, INT’L J. OF TRANSGENDER HEALTH S1, S11 (2022) (defining “gender diverse”).

9. See Glossary of Terms: LGBT, in GLAAD MEDIA REFERENCE GUIDE (11th ed.), https://perma.cc/68BQ-NJGW.