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Medicaid Act Protections for Gender-Affirming Care

Introduction

As of June 2024, ten states explicitly and categorically exclude coverage of gender-affirming care (“GAC”)1 1.GAC is not just treatment for transgender people; it is also sought by cisgender patients. See Theodore E. Schall & Jacob D. Moses, Gender-Affirming Care for Cisgender People, 53 Hastings Ctr. Rep. 15, 16, 20–21 (2023), https://doi.org/10.1002/hast.1486 [https://perma.cc/L‌QA4-EY84]. However, for the sake of clarity, in this Essay “GAC” and/or “gender-affirming treatments” refer to treatments for transgender patients.Show More for transgender Medicaid beneficiaries of all ages.2 2.Healthcare Laws and Policies: Medicaid Coverage for Transgender-Related Health Care, Movement Advancement Project, https://www.lgbtmap.org/img/maps/citations-medicaid.pdf [https://perma.cc/42RD-CNGA] [hereinafter Medicaid Coverage Map] (last updated May 21, 2024).Show More Another two states exclude coverage for transgender minor beneficiaries but presumably approve medically necessary treatment for adults.3 3.Id.Show More Coverage policies are unclear or not explicit in another eleven states and four U.S. territories.4 4.Id.Show More In total, at least twelve states5 5.Id. Exclusions that were blocked by federal courts are pending further litigation in four states: Arkansas, Florida, North Carolina, and West Virginia. Id.Show More deny medically necessary GAC based solely on the diagnosis for which beneficiaries seek treatment: gender dysphoria. Yet several states provide coverage to cisgender beneficiaries for the same gender-affirming procedures to treat other diagnoses.6 6.See, e.g., Kadel v. Folwell, 100 F.4th 122, 140 (4th Cir. 2024) (finding that West Virginia’s Medicaid program covers many GAC procedures for diagnoses other than gender dysphoria). See generally Dannie Dai et al., Prevalence of Gender-Affirming Surgical Procedures Among Minors and Adults in the US, 7 JAMA Network Open 2 (2024) (the majority of gender-affirming surgeries are chest-related procedures, and the majority of those are performed on cisgender males).Show More These exclusions violate the Medicaid Act’s (the “Act”) availability and comparability requirements, which mandate equality of coverage for medically necessary treatments without discrimination on the basis of diagnosis, type of illness, or condition.7 7.42 U.S.C.A. § 1396a(a)(10)(A)–(B) (West 2024); see Cruz v. Zucker, 116 F. Supp. 3d 334, 343–45 (S.D.N.Y. 2015).Show More Over the past decade, at least five courts heard challenges to GAC exclusions and held that they violate the Act because GAC is the consensus treatment for gender dysphoria and is medically necessary.8 8.See infra Section III.B. See generally Medical Organization Statements, Advocs. for Trans Equal., https://transhealthproject.org/resources/medical-organization-statements/ [https://per‌ma.cc/2U2S-EKKP] (last visited Sept. 27, 2024) (listing thirty major U.S. and global medical associations and societies endorsing the medical necessity of GAC).Show More To the Author’s knowledge, no court has held otherwise during that time. At the time of writing, a petition for a writ of certiorari on the issue is pending before the Supreme Court.9 9.Petition for Writ of Certiorari, Crouch v. Anderson, No. 24-90 (U.S. July 25, 2024).Show More

Exclusions differ in form between jurisdictions. Some states exclude coverage statutorily, some through agency regulations or guidance, and still others through shadow bans, unpromulgated policies generally known only within state Medicaid medical review offices.10 10.Christy Mallory & Will Tentindo, Williams Inst., UCLA Sch. of L., Medicaid Coverage for Gender Affirming Care 3–4 (2022).Show More Regardless of the form, these exclusions violate the Act.11 11.See infra Section III.B.Show More

Two issues are at the heart of these cases. A challenger must show that coverage for the categorically excluded treatment falls under a mandatory service category in the Act or that the state covers the treatment for diagnoses other than gender dysphoria. Upon that showing, the first issue is whether the excluded GAC treatment is medically necessary for the treatment of gender dysphoria. The second is whether the exclusion is a legitimate utilization control procedure.

This Essay proceeds in three Parts. First, it reviews the history of GAC coverage in state Medicaid plans. Second, it describes the availability and comparability jurisprudence requiring coverage of medically necessary care and equality of benefits. Third, it analyzes cases applying that jurisprudence in challenges to GAC exclusions, demonstrating a unanimous trend of finding the exclusions unlawful under the Act. While the Supreme Court is expected to decide only the broader issue of whether GAC bans violate the Equal Protection Clause of the Fourteenth Amendment in its anticipated United States v. Skrmetti opinion,12 12.L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 491 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024).Show More the Medicaid Act framework and reasoning should be part of that broader consideration, as it demonstrates the arbitrariness of GAC bans regardless of whether transgender people are a suspect class entitled to heightened scrutiny.

  1.  GAC is not just treatment for transgender people; it is also sought by cisgender patients. See Theodore E. Schall & Jacob D. Moses, Gender-Affirming Care for Cisgender People, 53 Hastings Ctr. Rep. 15, 16, 20–21 (2023), https://doi.org/10.1002/hast.1486 [https://perma.cc/L‌QA4-EY84]. However, for the sake of clarity, in this Essay “GAC” and/or “gender-affirming treatments” refer to treatments for transgender patients. ↑
  2.  Healthcare Laws and Policies: Medicaid Coverage for Transgender-Related Health Care
    ,

    Movement Advancement Project, https://www.lgbtmap.org/img/maps/citations-medicaid.pdf [https://perma.cc/42RD-CNGA] [hereinafter Medicaid Coverage Map] (last updated May 21, 2024). ↑

  3.  Id. ↑
  4.  Id. ↑
  5.  Id. Exclusions that were blocked by federal courts are pending further litigation in four states: Arkansas, Florida, North Carolina, and West Virginia. Id. ↑
  6.  See, e.g., Kadel v. Folwell, 100 F.4th 122, 140 (4th Cir. 2024) (finding that West Virginia’s Medicaid program covers many GAC procedures for diagnoses other than gender dysphoria). See generally Dannie Dai et al., Prevalence of Gender-Affirming Surgical Procedures Among Minors and Adults in the US, 7 JAMA Network Open 2 (2024) (the majority of gender-affirming surgeries are chest-related procedures, and the majority of those are performed on cisgender males). ↑
  7.  42 U.S.C.A. § 1396a(a)(10)(A)–(B) (West 2024); see Cruz v. Zucker, 116 F. Supp. 3d 334, 343–45 (S.D.N.Y. 2015). ↑
  8.  See infra Section III.B. See generally Medical Organization Statements, Advocs. for Trans Equal., https://transhealthproject.org/resources/medical-organization-statements/ [https://per‌ma.cc/2U2S-EKKP] (last visited Sept. 27, 2024) (listing thirty major U.S. and global medical associations and societies endorsing the medical necessity of GAC). ↑
  9.  Petition for Writ of Certiorari, Crouch v. Anderson, No. 24-90 (U.S. July 25, 2024). ↑
  10.  Christy Mallory & Will Tentindo, Williams Inst., UCLA Sch. of L., Medicaid Coverage for Gender Affirming Care 3–4 (2022). ↑
  11.  See infra Section III.B. ↑

  12.  L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460, 491 (6th Cir. 2023), cert. granted sub nom. United States v. Skrmetti, 144 S. Ct. 2679 (2024). ↑

Congressional Enforcement of Transgender Rights: Remedying Anti-Transgender Constitutional Harms Under the Enforcement Clause

Introduction

Over the past five years, trans Americans have faced a number of intrusions on their rights. States across the country have enacted laws that “bar trans participation on sports teams, ban the use of bathrooms consistent with one’s gender identity, prevent access to accurate identification documents, prohibit drag shows, prevent the discussion of queer identities in public schools, and ban queer books.”1 1.Scott Skinner-Thompson, Trans Animus, 65 B.C. L. Rev. 965, 968 (2024).Show More Perhaps the most harmful and widespread of these laws are those banning trans youth from accessing gender-affirming care.2 2.See Kiara Alfonseca, Record Number of Anti-LGBTQ Legislation Filed in 2023, ABC News (Dec. 28, 2023, 5:59 AM), https://abcnews.go.com/US/record-number-anti-lgbtq-legis‌lationfiled-2023/story?id=105556010 [https://perma.cc/2VBX-K8F2] (“The vast majority of legislation passed across the country has impacted gender-affirming care for minors . . . .”); Christy Mallory & Elana Redfield, Williams Inst., UCLA Sch. of L., The Impact of 2023 Legislation on Transgender Youth 1, 4 (2023), https://williamsinstitute.law.ucla.edu/wp-cont‌ent/uploads/Trans-Legislation-Summary-Oct-2023.pdf [https://perma.cc/4X35-CQJQ].Show More Going through puberty is a difficult experience for any adolescent. But for trans youth, the experience can be excruciating. Without access to gender-affirming care, trans youth may face “severe mental health problems, including depression, social anxiety, and suicidal thoughts and behavior.”3 3.Outlawing Trans Youth: State Legislatures and the Battle Over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2168 (2021).Show More Thus, “[e]very major medical association and leading world health authority supports health care for transgender people and youth.”4 4.GLAAD, Medical Association Statements in Support of Health Care for Transgender People and Youth (June 26, 2024), https://glaad.org/medical-association-statements-supportin‌g-trans-youth-healthcare-and-against-discriminatory/ [https://perma.cc/4X38-T72T].Show More

Under current law, even if these gender-affirming care bans are found to be unconstitutional, trans youth will have no remedy for the harms they face until the laws are struck down. States enjoy sovereign immunity from most actions seeking monetary relief.5 5.See, e.g., Hans v. Louisiana, 134 U.S. 1, 21 (1890); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53 (1996).Show More With sovereign immunity in place, the only remedy available is prospective relief preventing the states from engaging in future unconstitutional conduct.6 6.See Edelman v. Jordan, 415 U.S. 651, 677 (1974) (“[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief and may not include a retroactive award which requires the payment of funds from the state treasury.” (citations omitted)).Show More Trans youth must therefore bear the costs of puberty, and of reversing the changes that puberty causes, on their own.7 7.Id.Show More

By enacting and enforcing anti-trans measures, however, states have opened the door—and their wallets—for congressional intervention. This Essay argues that, because the recent proliferation of anti-trans legislation amounts to violations of the Fourteenth Amendment’s substantive provisions, the states have invited Congress to exercise its power under the Enforcement Clause to abrogate states’ sovereign immunity. Using this power, Congress may permit trans people to, at a minimum, seek monetary relief for harms caused by unconstitutional bans on gender-affirming care.8 8.See infra Part II.Show More

Legislation under the Enforcement Clause to enforce the rights of trans people would not come without challenges.9 9.Id.Show More For example, the Supreme Court recently heard a challenge to bans on gender-affirming care for minors under the Fourteenth Amendment’s Equal Protection Clause. In United States v. Skrmetti, the Supreme Court will determine whether laws banning transgender youth from accessing gender-affirming care constitute unlawful sex or transgender status discrimination under the Equal Protection Clause.10 10.See L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted sub nom United States v. Skrmetti, 144 S. Ct. 2679 (2024); Petition for a Writ of Certiorari at I, United States v. Skrmetti, No. 23-477 (U.S. Nov. 6, 2023).Show More Depending on the outcome of Skrmetti, Congress’s power under the Enforcement Clause to enforce the rights of trans people may become much broader and powerful than it is now, or it may become more ambiguous and narrower. No matter the outcome of Skrmetti, however, the wave of anti-trans legislation throughout the nation is sufficient to enact some Enforcement Clause legislation.

Notwithstanding any difficulties Enforcement Clause legislation might face, Congress should seek to enact legislation enforcing the rights of trans people anyway. Enforcement Clause legislation would require the states, rather than trans people, to bear the cost of any constitutional violations. Similarly, Enforcement Clause legislation would deter states from enacting unconstitutional anti-trans legislation by opening the states to financial liability any time they cross the constitutional line.11 11.Cf. Russell M. Gold, Compensation’s Role in Deterrence, 91 Notre Dame L. Rev. 1997, 2003–07 (2016) (articulating the role of damages in deterring private actors from committing wrongdoing).Show More And, as a coequal branch of government, Congress should seek to exercise its Enforcement Clause power to participate in the process of defining the rights guaranteed by the Fourteenth Amendment and to preserve the Enforcement Clause power into the future.

The Essay proceeds as follows. Part I examines Congress’s power to abrogate state sovereign immunity under the Fourteenth Amendment’s Enforcement Clause. Part II addresses the potential avenues Congress will have for Enforcement Power legislation after Skrmetti. Part III addresses why Congress should enact legislation abrogating sovereign immunity in response to anti-trans legislation.

  1.  Scott Skinner-Thompson, Trans Animus, 65 B.C. L. Rev
    .

    965, 968 (2024). ↑

  2.  See Kiara Alfonseca, Record Number of Anti-LGBTQ Legislation Filed in 2023, ABC News (Dec. 28, 2023, 5:59 AM), https://abcnews.go.com/US/record-number-anti-lgbtq-legis‌lationfiled-2023/story?id=105556010 [https://perma.cc/2VBX-K8F2] (“The vast majority of legislation passed across the country has impacted gender-affirming care for minors . . . .”); Christy Mallory & Elana Redfield, Williams Inst., UCLA Sch. of L., The Impact of 2023 Legislation on Transgender Youth 1, 4 (2023), https://williamsinstitute.law.ucla.edu/wp-cont‌ent/uploads/Trans-Legislation-Summary-Oct-2023.pdf [https://perma.cc/4X35-CQJQ]. ↑
  3.  Outlawing Trans Youth: State Legislatures and the Battle Over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2168 (2021). ↑
  4.  GLAAD, Medical Association Statements in Support of Health Care for Transgender People and Youth (June 26, 2024), https://glaad.org/medical-association-statements-supportin‌g-trans-youth-healthcare-and-against-discriminatory/ [https://perma.cc/4X38-T72T]. ↑
  5.  See, e.g., Hans v. Louisiana, 134 U.S. 1, 21 (1890); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53 (1996). ↑
  6.  See Edelman v. Jordan, 415 U.S. 651, 677 (1974) (“[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief and may not include a retroactive award which requires the payment of funds from the state treasury.” (citations omitted)). ↑
  7.  Id. ↑
  8.  See infra Part II. ↑
  9.  Id. ↑
  10.  See L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted sub nom United States v. Skrmetti, 144 S. Ct. 2679 (2024); Petition for a Writ of Certiorari at I, United States v. Skrmetti, No. 23-477 (U.S. Nov. 6, 2023). ↑

  11.  Cf. Russell M. Gold, Compensation’s Role in Deterrence, 91 Notre Dame L. Rev

    . 1997, 2003–07 (2016) (

    articulating the role of damages in deterring private actors from committing wrongdoing). ↑

Gender During Pregnancy, and Abortion As Gender-Affirming Care

Pregnancy is an extremely gendered state in the United States. The physical ability to become pregnant is tied to biological, hormonal, and genetic factors associated with sex assigned at birth. But the societal and legal aspects of pregnancy are very gendered, from the type of maternity clothes available, to medical forms that ask questions in particular pronouns and roles, to the use of the phrase “pregnant woman” in most state statutes restricting or banning abortion. Almost all depictions of pregnancy involve a cisgender, femme-presenting woman, often with a husband or cisgender male partner. Healthcare providers are used to treating this type of patient. And courts and legislators often assume that this is the only type of pregnant patient when they are crafting laws about reproductive autonomy.

What does this mean for transgender men, masc-presenting women, gender nonconforming people, genderqueer people, nonbinary people, and other gender diverse people, or anyone who does not fit the aforementioned mold? Their experiences of pregnancy-related healthcare are necessarily shaped by both legal and cultural conceptions of pregnancy that are imbued with gendered assumptions, including about their reproductive healthcare needs. And, in turn, this gendering of pregnancy can cause gender diverse people to experience gender dysphoria during pregnancy.

This Essay explores how gender shows up in laws regarding reproductive rights. First, it highlights that gender diverse people often face discrimination in reproductive healthcare—whether they seek to carry a pregnancy to term or to terminate a pregnancy—and that discriminating against gender diverse pregnant people due to their gender identity violates federal law. Second, this Essay posits that, in some circumstances, terminating a pregnancy can constitute gender-affirming care. Part I traces the law’s approach to sex assigned at birth and gender during pregnancy and the effects that sexed and gendered assumptions within the law have on pregnant people who are not cisgender, femme-presenting women. Part II discusses the legal landscape for trans, nonbinary, gender nonconforming, and other gender diverse people trying to access reproductive healthcare. Part III explains the current state of the law and proposes that abortion can be lifesaving, gender-affirming care for some pregnant people.

Introduction

Reproductive healthcare has been the subject of continual debate, both in the forty-nine years that Roe v. Wade1 1.410 U.S. 113, 153–54 (1973).Show More was good law, and since Dobbs v. Jackson Women’s Health Organization2 2.142 S. Ct. 2228, 2240–43 (2022).Show More held in 2022 that abortion is not a constitutional right. In most discussions about reproductive freedom—including legal discussions—people who are pregnant are referred to as pregnant women or as female.3 3.Cf. Emily Barske, An Infusion of Inclusion into the News, NPR Public Editor (Feb. 18, 2022, 3:32 PM), https://www.npr.org/sections/publiceditor/2022/02/18/1081846292/an-infus‌ion-of-inclusion-into-the-news [https://perma.cc/8AE6-U9RF] (discussing that most sources had used “pregnant women” to describe all pregnant people until recently, and explaining that NPR uses “pregnant people” when discussing all pregnant people and “pregnant women” when discussing a study or other source that is specific to women).Show More And though transgender men, nonbinary people, and gender nonconforming people can be pregnant, the vast majority of laws and healthcare resources regarding reproductive rights assume, implicitly or explicitly, that the only people who are pregnant are cisgender women.4 4.See infra Sections I.B, II.A, II.B.Show More This false assumption can and often does lead to disparate treatment in the provision of reproductive healthcare, from insurance companies that require a trans person to wait longer for fertility coverage to be triggered,5 5.Insurance company definitions of infertility often exclude transgender people who are receiving gender-affirming care. Gabriela Weigel, Usha Ranji, Michelle Long & Alina Salganicoff, Coverage and Use of Fertility Services in the U.S., KFF (Sept. 15, 2020), https://www.kff.org/womens-health-policy/issue-brief/coverage-and-use-of-fertility-services‌-in-the-u-s/ [https://perma.cc/4CE7-APXL].Show More to an intake form for new pregnant patients assuming that all patients are women.6 6.Bella Isaacs-Thomas, For Many Pregnant Trans People, Competent Medical Care Is Hard to Find, PBS News (May 26, 2021, 8:00 AM), https://www.pbs.org/newshour/health/for-man‌y-pregnant-trans-people-competent-medical-care-is-hard-to-find [https://perma.cc/4AQT-T3‌7T].Show More

Sex and gender are now widely understood to be distinct concepts. Sex is typically described as a classification assigned at birth as male, female, or intersex that refers to biological and physical characteristics of a person, including genetics, hormones, genitalia, reproductive organs, and secondary sex characteristics.7 7.Sarah S. Richardson, Sex Itself: The Search for Male and Female in the Human Genome 14–15 (2013); Gender and Health, World Health Org., https://www.who.int/health-to‌pics/gen‌der#tab=tab_1 [https://perma.cc/RUN6-DQGD] (last visited Oct. 31, 2024); Carolyn M. Mazure, What Do We Mean by Sex and Gender?, Yale Sch. of Med. (Sept. 19, 2021), https://medicine.yale.edu/news-article/what-do-we-mean-by-sex-and-gender/ [https://perma.‌cc/UFZ3-DP3S].Show More Sex has often been classified as either male or female, though the myriad factors that make up sex reveal that this binary is an overly simplistic description.8 8.Richardson, supra note 7, at 14.Show More Intersex people are born with one or more sex characteristics that fall outside of traditional concepts of male or female.9 9.interACT: Advocs. for Intersex Youth, Intersex 101: Everything You Want to Know!, https://interactadvocates.org/wp-content/uploads/2017/03/INTERSEX101.pdf [https://perma‌.cc/79HE-R3J3] (last visited Oct. 31, 2024).Show More So an intersex person might have a chromosomal sex that is traditionally understood as “male,” for instance, and “female” genitalia.10 10.Id.; Richardson, supra note 7, at 127.Show More

In contrast to sex, gender refers to a spectrum of socially constructed roles, behaviors, and expectations.11 11.Richardson, supra note 7, at 14; Gender, APA Dictionary of Psychology, Am. Psych. Ass’n, https://dictionary.apa.org/gender [https://perma.cc/3RSP-JSGZ] (last updated Nov. 15, 2023).Show More Gender can refer to the experience of masculinity or femininity, as well as the experience of being nonbinary, transgender, gender nonconforming, genderfluid, or another gender.12 12.American Psychological Association, supra note 11.Show More Gender identity refers to a person’s internal concept of their gender, and gender expression is how a person presents their gender outwardly.13 13.Laurel Wamsley, A Guide to Gender Identity Terms, NPR (June 2, 2021, 6:01 AM), https://www.npr.org/2021/06/02/996319297/gender-identity-pronouns-expression-guide-lgb‌tq [https://perma.cc/7AVR-HQ5W].Show More

Sex and gender were not widely seen as distinct categories until the 1970s.14 14.See Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality 3 (2000).Show More Accordingly, it is no surprise that case law about pregnancy prior to the 1970s conflated the two concepts, often using the terms “woman” and “she” to describe pregnant people. Yet case law over the past fifty years has largely still failed to distinguish sex assigned at birth from gender, assuming without explanation that all pregnant people are cisgender women.15 15.See, e.g., Gonzales v. Carhart, 550 U.S. 124, 135 (2007); Whole Woman’s Health v. Hellerstedt, 579 U.S. 582, 589–91 (2016); Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2258–59 (2022).Show More When discussing pregnancy, courts have largely ignored the existence of transgender men, gender nonconforming people, nonbinary people, and other non-cisgender women who can become pregnant.16 16.See infra Sections I.B, II.B.Show More In doing so, courts both fail to accurately describe pregnancy and pregnancy-related discrimination when crafting case law—harming all pregnant people in the process—and they ignore the specific ways in which gender diverse pregnant people can experience harm from healthcare and legal systems that often operate as though gender diverse people do not exist.

Furthermore, reproductive healthcare access can be essential for gender diverse people. For some trans, gender nonconforming, and nonbinary people, prohibiting access to abortion prevents them from accessing care that would affirm their identity and reduce gender dysphoria, as well as potentially ameliorate discrimination from the many people and healthcare systems they would have to interact with while pregnant.17 17.See infra Section III.B.Show More The autonomy to have an abortion can be particularly important for gender diverse adolescents, who may face dysphoria during pregnancy at an age where they are simultaneously disproportionately likely to face harassment, violence, and depression.18 18.Id.Show More Intersex people can likewise experience dysphoria and distress during pregnancy, particularly if they were subject to nonconsensual surgery during infancy that altered their body;19 19.Intersex people are underrepresented in research, but the studies that do exist suggest they struggle with gender dysphoria related to their condition and surgeries at significant rates. See Cynthia Kraus, Classifying Intersex in DSM-5: Critical Reflections on Gender Dysphoria, 44 Archive Sexual Behav. 1147, 1155 (2015); Paulo Sampaio Furtado et al., Gender Dysphoria Associated with Disorders of Sex Development, 9 Nature Revs. Urology 620, 623 (2012).Show More banning abortion can be a similar removal of their agency. Even a cisgender woman whose gender presentation is such that she does not imagine herself as someone who would give birth could face gender dysphoria during pregnancy.20 20.See, e.g., Anna Malmquist, Johanna Wikström, Louise Jonsson & Katri Nieminen, How Norms Concerning Maternity, Femininity and Cisgender Increase Stress Among Lesbians, Bisexual Women and Transgender People with a Fear of Childbirth, 93 Midwifery art. no. 102888, at 5–6 (2021).Show More For anyone experiencing gender dysphoria or other threats during pregnancy, the ability to decide whether to carry a pregnancy to term can be lifesaving. And just like other gender-affirming healthcare that many cisgender people receive, such as breast implants and other plastic surgery, an abortion can constitute gender-affirming care.

This Essay reckons with the gendered nature of pregnancy in society, as reflected in the law. It discusses the extent to which legal sources tend to construct pregnancy as inherently tied to gender—in keeping with societal misconceptions about gender—and how, in doing so, the law fails to accurately capture pregnancy. It explains the logistical, legal, and social barriers to accessing reproductive healthcare for people who do not fit the outmoded sex and gender binaries, both when people want to become pregnant and give birth to a child, and when people learn they are pregnant and want to have an abortion. And with respect to abortion, the Essay explains why termination of pregnancy can be a form of gender-affirming care.

  1.  410 U.S. 113, 153–54 (1973). ↑
  2.  142 S. Ct. 2228, 2240–43 (2022). ↑
  3.  Cf. Emily Barske, An Infusion of Inclusion into the News, NPR Public Editor (Feb. 18, 2022, 3:32 PM), https://www.npr.org/sections/publiceditor/2022/02/18/1081846292/an-infus‌ion-of-inclusion-into-the-news [https://perma.cc/8AE6-U9RF] (discussing that most sources had used “pregnant women” to describe all pregnant people until recently, and explaining that NPR uses “pregnant people” when discussing all pregnant people and “pregnant women” when discussing a study or other source that is specific to women). ↑
  4.  See infra Sections I.B, II.A, II.B. ↑
  5.  Insurance company definitions of infertility often exclude transgender people who are receiving gender-affirming care. Gabriela Weigel, Usha Ranji, Michelle Long & Alina Salganicoff, Coverage and Use of Fertility Services in the U.S., KFF (Sept. 15, 2020), https://www.kff.org/womens-health-policy/issue-brief/coverage-and-use-of-fertility-services‌-in-the-u-s/ [https://perma.cc/4CE7-APXL]. ↑
  6.  Bella Isaacs-Thomas, For Many Pregnant Trans People, Competent Medical Care Is Hard to Find, PBS News (May 26, 2021, 8:00 AM), https://www.pbs.org/newshour/health/for-man‌y-pregnant-trans-people-competent-medical-care-is-hard-to-find [https://perma.cc/4AQT-T3‌7T]. ↑
  7.  Sarah S. Richardson, Sex Itself: The Search for Male and Female in the Human Genome 14–15 (2013); Gender and Health, World Health Org., https://www.who.int/health-to‌pics/gen‌der#tab=tab_1 [https://perma.cc/RUN6-DQGD] (last visited Oct. 31, 2024); Carolyn M. Mazure, What Do We Mean by Sex and Gender?, Yale Sch. of Med. (Sept. 19, 2021), https://medicine.yale.edu/news-article/what-do-we-mean-by-sex-and-gender/ [https://perma.‌cc/UFZ3-DP3S]. ↑
  8.  Richardson, supra note 7
    ,

    at

    14.

    ↑

  9.  interACT: Advocs. for Intersex Youth, Intersex 101: Everything You Want to Know!, https://interactadvocates.org/wp-content/uploads/2017/03/INTERSEX101.pdf [https://perma‌.cc/79HE-R3J3] (last visited Oct. 31, 2024). ↑
  10.  Id.; Richardson, supra note 7, at 127
    .

    ↑

  11.  Richardson, supra note 7
    ,

    at

    14;

    Gender, APA Dictionary of Psychology, Am. Psych. Ass’n, https://dictionary.apa.org/gender [https://perma.cc/3RSP-JSGZ] (last updated Nov. 15, 2023). ↑

  12.  American Psychological Association, supra note 11. ↑
  13.  Laurel Wamsley, A Guide to Gender Identity Terms, NPR (June 2, 2021, 6:01 AM), https://www.npr.org/2021/06/02/996319297/gender-identity-pronouns-expression-guide-lgb‌tq [https://perma.cc/7AVR-HQ5W]. ↑
  14.  See Anne Fausto-Sterling, Sexing the Body: Gender Politics and the Construction of Sexuality 3 (2000). ↑
  15.  See, e.g., Gonzales v. Carhart, 550 U.S. 124, 135 (2007); Whole Woman’s Health v. Hellerstedt, 579 U.S. 582, 589–91 (2016); Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2258–59 (2022). ↑
  16.  See infra Sections I.B, II.B. ↑
  17.  See infra Section III.B. ↑
  18.  Id. ↑
  19.  Intersex people are underrepresented in research, but the studies that do exist suggest they struggle with gender dysphoria related to their condition and surgeries at significant rates. See Cynthia Kraus, Classifying Intersex in DSM-5: Critical Reflections on Gender Dysphoria, 44 Archive Sexual Behav. 1147, 1155 (2015); Paulo Sampaio Furtado et al., Gender Dysphoria Associated with Disorders of Sex Development, 9 Nature Revs. Urology 620, 623 (2012). ↑

  20.  See, e.g., Anna Malmquist, Johanna Wikström, Louise Jonsson & Katri Nieminen, How Norms Concerning Maternity, Femininity and Cisgender Increase Stress Among Lesbians, Bisexual Women and Transgender People with a Fear of Childbirth, 93 Midwifery art. no. 102888, at 5–6 (2021). ↑

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