Not Just a Woman’s Burden: Implications of gender-specific language in abortion law
Image Description: Thumbnail depicts a protest with signs reading “Trans People are Not a Distraction” and “Trans Rights are Human Rights.”
CW: Includes discussion of pregnancy and forced sex assignment
The language of “women” echoes throughout the history of abortion. Most recently, Dobbs v. Jackson Women’s Health withdrew a ban on regulations that “imposed an ‘undue burden’ on a woman’s right to have an abortion.” The Dobbs Court relied on originalism, citing historic statutes criminalizing abortion in the appendices that follow the opinion and claiming these as evidence against a constitutionally enshrined right to abortion. Each statute refers to “women” as the abortion recipient.[1]
Contrary to this language, transgender and nonbinary people get pregnant, seek abortions or experience miscarriages,[2] and may also use testosterone, a hormone advancing secondary sex characteristics like facial hair and low vocal tone. Media anecdotes, too, routinely follow “the pregnant man.”[3] Many of these same individuals legally change their identity documents to reflect a sex other than female. Thus, abortion seekers may present legally and physically as something other than an originalist’s interpretation of “female”, “woman”, and “women.” These understandings of womanhood are even further complicated for people of color and people with disabilities, as the Court increasingly reads sex through a lens of white essentialism.
In light of originalist and essentialist jurisprudence in the interpretation of abortion rights and sex, the use of “women” specific language gives rise to concerning questions of who counts as a woman. Where a women’s rights approach fails to include all who may seek an abortion, a shift to broader and inclusive language can eliminate such concerns.
Thus far, the Supreme Court has provided little insight on what constitutes a “woman”. The most telling interpretation is found in Bostock v. Clayton County, which found sex discrimination where a transgender woman was fired after sharing intent to “live and work full time as a woman.” As in Dobbs, the Court invoked originalism, reading Title VII with concerning essentialism. Rather than imbue “sex” with inclusive meaning, the Court considers only “male” and “female.” An employer firing a person of any sex “for actions or attributes it would tolerate in an individual of another sex” is sex discrimination. The Court implies the firing was not because the plaintiff was transgender, but because of her desire to live and work as a woman – a desire the employer allowed of cisgender women. To recognize discrimination, the Court positions her as “another sex” compared to cisgender women, yet provides only “male” as the alternative.
Texas, a leading state in anti-abortion and anti-transgender legislation, offers a curious hypothetical applying these Bostock principles post-Dobbs. Texas restricts abortion under SB 8 and HB 1280, for a “pregnant woman” and “pregnant female” respectively. Texans can also change their name and binary sex markers on a license, state ID, and birth certificate, often without gender-affirming surgery. Thus, a pregnant Texan may be perceived as a man and legally identified as male. If they pursue an abortion in Texas, can they legally receive one?
Precedent offers few clues. Under Dobbs, the Texan has no right to abortion, but are they restricted by SB 8 and HB 1280? If our pregnant Texan is recognized as male, an originalist Court would struggle to argue that such legislation was drafted intending application to a pregnant man. Conversely, any prospective federal legislation protecting abortion access focusing on “women” is vulnerable to the same originalist analysis. Proposed bills like the Women’s Health Protection Act or the Ensuring Women’s Rights to Reproductive Freedom Act may still signal the exclusion of any non-woman, leaving our pregnant Texan without recourse. Abortion rights advocacy that centers women’s rights may be complicit in building this paradox, continuing the narrative that abortion is solely a (cisgender) woman’s issue.
Though our pregnant Texan exemplifies the administrative flaws, the women’s rights movement in the United States has a history of exclusion that goes beyond the question of gender identity. From early suffragettes to the abortion access granted by Roe v. Wade, women’s rights gains routinely center cisgender white women. The tendency of women’s rights to be founded in white womanhood ignores unique, intersectional experiences, applauding wins for “women” while implicitly bolstering the essentialist notion of “woman” as white and “women” as childbearing. By comparison, Black scholar Pauli Murray argued for “universal suffrage” as the basis of the Voters Rights Act of 1965, and in so doing centered access obstacles for marginalized communities excluded from voting by something beyond just “sex.” Removed from any biological context, voting rights work exemplifies the harms of a legislative focus on women in attempts to expand civil rights. Though the 19th Amendment enfranchised all sexes, the women’s rights movement that led to its passage focused on the narratives of white women and failed to account for the barriers faced by women of color. As a result, Black women and disabled women experienced near total exclusion from the polls for another half-century. The Voters Rights Act, built upon Murray’s inclusive language, instead identified specific barriers faced among intersecting marginalized communities. The Act addressed those barriers directly, while the symbolic 19th Amendment had left these barriers intact. As a result, voter registration by Black Americans more than doubled, and disabled Americans gained momentum in their own battles for access.
Murray, often seen as a theoretical predecessor to Kimberlé Crenshaw’s intersectionality, argued for “universal human rights” as an advocacy framework inclusive of race-sex analyses beyond the vote. Learning from Murray, an approach to abortion protections that centers not “women,” but the pregnant person recognizes the unique experiences of abortion seekers that may not be otherwise represented under a women’s rights framework. An approach that instead centers women and essentializes sex, as the Court currently embraces, has frightening implications for women’s rights.
Under Bostock, our pregnant Texan male is held to be in a class of women. The ability to carry a child is definitive of their womanhood. This outcome seems counterintuitive to proponents of choice such as abortion rights advocates, and calls into jeopardy the rights of a woman who cannot become pregnant. A shift to inclusive language – to Murray’s universal approach - counteracts such essentialism and provides an intersectional framework for exercising those rights. Though the shift drops the language of “women,” it shares the intent of choice.
As our Texan demonstrates, sex specific language requires an assessment of whether any one individual fits the social prescription of that specific sex identity. This means that rights granted in the name of a specific identity tend to benefit only those understood to hold that identity. Rather than affirming rights by specific sex identity, women’s rights and universal rights advocates have long seen the value of invoking inclusive language. Inclusive language, in the law and in advocacy surrounding law, shapes who is included in the law. In a movement shaped by autonomy, inclusive language allows for choice – of parenthood, of gender, of experience – without excluding those who live as something other than an originalist view of “woman.”
[1] Appendix A cites 37 state statutes and Appendix B cites 14. The Court helpfully italicizes the mentions of “woman” and “women” in most statutes.)
[2] Because treatment for miscarriage is often identical to treatment inducing abortion, providers may be hesitant to treat miscarriages for fear of exposure to legal action.
[3] Also https://www.nbcnews.com/nbc-out/out-community-voices/was-famous-pregnant-man-thomas-beatie-now-rcna1328, https://www.nytimes.com/2018/06/22/insider/transgender-baby-see-a-family-not-just-a-pregnant-man.html, https://www.bbc.com/news/av/stories-49596060.