An Inclusive Approach to LGBTQ+ Abortion Rights
The rights of transgender and nonbinary persons are under siege in the United States. According to the Human Rights Campaign, 2021 represented the worst year in recent history for anti-LGBTQ+ legislation, with 2022 on track to likely break that record. These strategic laws span multiple areas of civil liberties and civil rights, but all attempt to single out and target the LGBTQ+ community for unfair and unequal treatment. A few examples include limiting or prohibiting discussions of sexual orientation and gender identity in the classroom, removing gender identity as a protected class under a state’s civil rights act, prohibiting youth from receiving gender-affirming care, and ordering child abuse investigations of parents who seek gender-affirming care for their transgender children.
Significant harms transpire, regardless of whether such laws take effect or ultimately withstand judicial review. As recent reports show, in Texas — where the governor has stated that gender-affirming medical care for transgender youth should be investigated as child abuse — transgender youth and their families feel stigmatized and now live in fear, and healthcare providers and clinics have stopped providing essential gender-affirming care in the face of uncertainty and political pressure. Transgender youth may now delay or have trouble accessing care, despite ample evidence and agreement among leading medical groups that gender-affirming care is medically necessary and even life-saving.
These represent just a small subset of the laws comprising the recent wave of anti-LGBTQ+ legislation. In addition to laws that target the LGBTQ+ population explicitly, federal and state laws and regulations that infringe on reproductive rights are a frequently overlooked area where the LGBTQ+ community suffers unique harms. A bourgeoning scholarship and discourse consider the experiences of transgender and nonbinary individuals, families, and communities. Yet the reproductive justice discourse still too often fails to include a thoughtful and nuanced discussion of the experiences of transgender and nonbinary persons. This article addresses that gap by unpacking the unique burdens imposed on transgender and nonbinary persons in the ongoing assault on reproductive rights. Specifically, it focuses on antiabortion laws and transgender and nonbinary persons, emphasizing the disproportionate harms that abortion restrictions inflict on these communities. It concludes by suggesting a path toward greater inclusivity in the fight for reproductive justice.
I. Abortion Rights in the United States
The United States Supreme Court decided the landmark abortion case Roe v. Wade in 1973, striking down several Texas laws that criminalized abortion except when necessary to save the life of the mother. Nearly twenty years later, in Planned Parenthood of Southeastern Pennsylvania v. Casey, the Court reaffirmed Roe and held, among other things, that states may not ban pre-viability abortion. Casey, however, replaced Roe’s trimester framework and strict scrutiny standard with a more permissive “undue burden” standard. More recently, in 2016 and 2020, the Supreme Court struck down Targeted Restrictions on Abortion Provider (TRAP) laws in Texas and Louisiana, respectively, which required abortion providers to obtain admitting privileges at local hospitals and/or required abortion facilities to satisfy certain standards applicable to ambulatory surgical centers.
Despite Roe and its progeny, states continue to enact increasingly severe abortion restrictions — approaching outright bans — emboldened by the Supreme Court’s current strong 6-3 conservative majority. The year 2021, for example, marked the first time that states enacted more than 100 abortion restrictions in a single year. These restrictions take many forms, including TRAP laws; mandatory counseling and post-counseling waiting periods, which often mandate the provision of irrelevant, misleading, or scientifically unsupported information; insurance coverage limitations; parental consent or notification requirements; conscience laws; and restrictions on medication abortion beyond those required by the U.S. Food and Drug Administration (FDA), such as requiring an in-person examination and prohibiting the use of telemedicine and mail pharmacies. By April 2022, at least eight state legislatures — Alabama, Arizona, Illinois, Iowa, Missouri, South Dakota, Washington, and Wyoming — had introduced bills that would ban medication abortion entirely.
The dismantling of abortion rights in the United States is top of mind for reproductive justice advocates in light of the Supreme Court’s forthcoming decision in Dobbs v. Jackson Woman’s Health Organization, which involves a Mississippi law that bans abortion after fifteen weeks gestation — in direct contravention of Roe and Casey — and contains no exceptions for rape or incest. Many scholars and advocates fear the Supreme Court will overturn or severely restrict Roe through its decision in Dobbs. And states are ready if this occurs — over half the states are likely to ban abortion if the Court overturns Roe. A Court decision in Dobbs is expected in the summer of 2022.
Mississippi’s fifteen-week ban appears restrained when one considers laws like Texas Senate Bill 8 (SB 8), which bans abortion upon detection of a fetal heartbeat, typically around six weeks gestation, when many will not yet knowthey are pregnant. SB 8 remains in effect and has proven difficult to challenge in court given its unique civil enforcement regime, which prohibits state enforcement and instead allows private citizens to sue abortion providers and any other person who “aids and abets” a pregnant person in obtaining an abortion after detection of a fetal heartbeat.
Unsurprisingly, other states quickly proposed copycat laws, with some going even further. In Ohio, for example, a bill with a citizen enforcement provision was introduced that would ban all abortions, at any time, except to prevent the death of the pregnant person. While most of these bills have not yet passed, on March 23, 2022, Idaho became the first state to pass abortion legislation modeled after SB 8. Governor Brad Little signed the law despite believing it will likely be “proven both unconstitutional and unwise.” And while Oklahoma’s law does not contain a civil enforcement provision, Oklahoma Governor Kevin Stitt signed a bill into law on April 12, 2022, making it a felony to perform an abortion at any time during pregnancy, except to save the life of the pregnant person.
Attacks on abortion rights are not new, but this recent wave of state restrictions may be the most devastating yet. The ramifications are dire for all persons capable of becoming pregnant, with uniquely burdensome consequences for transgender and nonbinary persons.
II. Abortion Restrictions and Transgender and Nonbinary Persons
The consequences of antiabortion laws cannot be appreciated fully without understanding intersectionality, a concept with a long historical arc, spanning centuries through the works of Black women, such as Sojourner Truth’s famous speech, “Ain’t I a Woman.” Professor Kimberlé Crenshaw gave the concept a name in 1989, when she coined the term “intersectionality” to describe how race and sex intersect to shape the experiences of Black women. Today, the theory extends well beyond race and gender, helping to explain how an individual’s lived experiences are informed by race, class, disability status, age, sexual orientation, gender identity, and much more.
Violations of human rights — which include reproductive rights — often impose disproportionate burdens on individuals who live at the intersections of historically marginalized and vulnerable identities. Abortion is generally portrayed as a “woman’s issue,” but transgender and nonbinary persons may also become pregnant and need abortion care. Much progress has been made toward a more inclusive approach to reproductive justice, but the discourse still too often fails to fully capture the harms that antiabortion laws impose on the LGBTQ+ community, particularly transgender and nonbinary persons.
First, LGBTQ+ persons experience higher rates of poverty compared to cisgender heterosexuals (21.6% vs. 15.7%), with significant variations depending on sexual orientation, gender identity, and other axes of identity such as race, age, and disability. Transgender men — who may be capable of becoming pregnant — have the highest rates of poverty (33.7%). Transgender persons are also more likely to have multiple intersectional identities, further increasing their risk of poverty. For example, 35.5% of transgender persons experience a disability, compared to 24.3% of cisgender straight women and 19.5% of cisgender straight men. Additionally, LGBTQ+ persons are overrepresented among those who experience homelessness. Data suggest there has been an astonishing 88% increase in the number of transgender persons experiencing homelessness since 2016.
Higher rates of disability and poverty mean that many transgender persons rely on Medicaid, making it likely they will not have adequate insurance coverage for abortion care because of the various laws that restrict the use of public funds for abortion. Further, laws that require multiple clinic trips or prohibit the use of telemedicine for medication abortion impose significant, sometimes insurmountable, barriers for low-income populations and persons with disabilities. This proves particularly true for persons living in abortion deserts, who may live hundreds of miles from the nearest abortion clinic. As a result, they may delay care, forego care, or incur significant out-of-pocket costs, sometimes amounting to more than one-third of an individual’s monthly income.
Second, LGBTQ+ individuals experience higher rates of intimate partner violence and violent victimization, including rape and sexual assault, by strangers as well as people they know. Data suggest that the majority of transgender and nonbinary persons will experience sexual abuse or assault at some point in their lives. Given these staggering numbers, antiabortion laws that eliminate exceptions for rape or incest are particularly cruel, amplifying the harms of sexual assault, reviolating the victim’s bodily autonomy, and exposing them to further indignity and trauma. Further, abortion laws that require multiple, medically unnecessary clinic trips, potentially involving long distances and greater financial costs, increase the likelihood that a violent partner will become aware of the abortion, particularly if the abuser wields control over the victim’s bank account, daily whereabouts, and access to friends and family. This exposes the pregnant person to significant risk of further harm.
Third, transgender and nonbinary persons continue to encounter significant discrimination and stigma in the healthcare system and broader society. Nearly half of transgender adults report having negative or discriminatory experiences with a healthcare provider — a rate that jumps to 68% for transgender people of color. Stigma and shame may be particularly likely when the care sought involves abortion or other reproductive healthcare services that do not align with their gender identity, such as a transgender man or nonbinary person who presents as a man but is pregnant. Cazembe Murphy Jackson, a transgender man who sought an abortion after he was raped, stated that “[a]bortion comes with a lot of stigma in general. For trans men, it comes with the added stigma of your gender identity.” Due to this discrimination, transgender persons may postpone or avoid medical care. Or if they do seek care, they may be denied care or experience mistreatment or harassment. Laws that defund or reduce funding for providers like Planned Parenthood, or that impose such onerous requirements that clinics are forced to close, are thus a “scary prospect” for transgender and nonbinary patients. For some, these providers offer the only gender-affirming care in their area — care that extends well beyond abortion, such as hormone replacement therapy.
Finally, privacy concerns may be particularly significant for transgender and nonbinary persons who are pregnant but do not present as women. Laws that require unnecessary clinic trips can be an unwelcome form of outing and source of further shame. As Jackson recalls, “[t]wenty years later, I can still hear their giggling and the embarrassment I felt [when I told people I was pregnant].” Fortunately, he received abortion care at Planned Parenthood, where he remembers receiving kind and compassionate treatment.
For transgender and nonbinary persons who already experience significant discrimination in their daily lives, the stigma associated with being viewed by society as a “pregnant man” could be devastating. Transgender men and nonbinary persons assigned female at birth have been found to have the highest prevalence of lifetime suicide thoughts and attempts, with multiracial transgender people at even greater risk. According to Jackson, having an abortion saved his life and kept him from committing suicide. There exists a serious need to expand, not restrict, access to abortion for victims of sexual assault who may be dealing with significant shame, stigma, and trauma. This includes expanding access to telemedicine abortion services and medication abortion through the mail. Yet tragically, states are increasingly limiting or prohibiting access to such services as they attempt to eliminate abortion from their states — if not the nation — entirely.
III. Moving Toward LGBTQ+-Inclusive Abortion Rights Advocacy
Given the stakes for transgender and nonbinary persons, what are the implications for moving forward?
First, transgender and nonbinary persons must be given a larger platform to tell their stories and to fight for their right to reproductive health care. They are the experts of their own lives, experiences, and needs, and they must be able to speak their truth. Importantly, they must feel welcome and encouraged to do so by other reproductive justice advocates. Even while this article proceeds with a narrow scope by focusing on abortion restrictions, it recognizes that reproductive justice extends far beyond abortion, involving a diverse set of issues and rights. Abortion restrictions represent just one part of the broader attack on reproductive rights and, more broadly, human rights. Reproductive justice advocates should therefore strive for collective action grounded in intersectionality, bringing together advocates who fight for women’s rights, LGBTQ+ equality, disability rights, racial justice, and socioeconomic equality, among others. An intersectional approach provides the basis for reconceptualizing the fight for abortion rights as a movement for all persons capable of becoming pregnant.
Second, when advocates, policymakers, and healthcare providers speak about abortion rights and reproductive justice, they should strive to use inclusive language that recognizes that abortion rights and restrictions affect all persons capable of becoming pregnant, not just persons who identify as women. The use of inclusive language such as “pregnant persons” has been criticized for “erasing women and mothers as worthy categories of identity,” and creating an unnecessary “polarized debate” over language. Yet we need not erase women to achieve inclusivity. It remains possible to speak of women and persons capable of becoming pregnant in the same breath, giving both a space in the fight for reproductive justice so that neither women nor others capable of becoming pregnant feel erased. When debating contentious social issues like abortion, language matters. It can unite or divide. Of course, language does not do all the work, far from it. But using inclusive language acknowledges that the issues impact more than just persons who identify as women. It signals that transgender and nonbinary persons are recognized and welcomed in the fight for reproductive justice, rather than erased — an erasure that some states appear determined to achieve through their recent legislative actions.
Last, despite the narrow scope of this article, advocates and policymakers must recognize that antiabortion laws represent just one slice of a much broader campaign to curtail important and deeply valued civil rights, ranging from reproductive rights, LGBTQ+ equality, racial justice, and voting rights. Advocates must strive to resist these laws collectively because they all arise from a similar place and with a similar purpose: to assert control, or even ownership, over the bodily autonomy and identities of certain groups, typically those who have been historically marginalized. As astutely stated by Professor Michele Goodwin, “[i]n order to end the attacks on reproductive freedom, we must address the full extent of the crisis, which goes far wider and deeper than different state legislatures enacting restrictive abortion laws.” The fight is challenging, but with work and dedication, intersectional advocacy and a recognition of the connection between antiabortion laws and other attacks on civil rights will help ensure that all voices are heard and that the rights of all are pursued and secured. In the words of Professor Crenshaw, “the goal . . . should be to facilitate the inclusion of marginalized groups for whom it can be said: ‘When they enter, we all enter.’” Reproductive rights, and human rights, will not be truly attained until they are attained for all.
About the Author:
Allison M. Whelan is Sharswood Fellow at the University of Carey Law School and an Associate Fellow at the University of Pennsylvania’s Leonard Davis Institute of Health Economics. She is an interdisciplinary scholar whose research and teaching encompass a broad set of medical, science, and social policy issues at the intersection of administrative law, health and FDA law, constitutional law, bioethics, and reproductive justice. She has published or has forthcoming articles in the Vanderbilt Law Review, Minnesota Law Review, Washington & Lee Law Review, Illinois Law Review, Cornell Law Review Online, and Fordham Law Review, among others. Allison is the author of multiple book chapters, and she also publishes op-eds and commentary, including for Ms. Magazine, the Harvard Bill of Health, and the Philadelphia Inquirer.