Gender During Pregnancy, and Abortion As Gender-Affirming Care

*Climenko Fellow and Lecturer in Law, Harvard Law School. This piece benefitted from insightful feedback from Helen E. White, Susannah Barton Tobin, and Laura Lane-Steele. Many thanks to the editorial staff of the Virginia Law Review Online for their outstanding editorial work. All errors are my own.Show More

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
    

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    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). ↑