Text of the response I gave at the Bristol Law School Centre for Health Law and Society conference on “Reproductive Expectations,” 27th October 2021.
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I am grateful to Ben and Sheelagh for the opportunity to speak on this issue today as it is both pressing and exceedingly topical.
This month, the pregnancy and abortion charitable organisation BPAS announced that it will not be using the term ‘pregnant people’ in its messaging, for the following reasons.
“From choice in childbirth to access to emergency contraception, our reproductive rights are undermined precisely because these are issues that affect women.”
“Women’s reproductive healthcare and choices remain regulated and restricted in the way they are precisely because they are women’s issues, sadly still bound up with heavily gendered and judgmental approaches to female sexuality, ideals of motherhood and expectations of maternal sacrifice, and the need to control women’s bodies and choices.
“If we cannot clearly articulate that it is predominantly women, rather than people at large, who are affected by this, we will find it much harder to dismantle a framework that today is still underpinned by sexism.”
I want to unpack this argument somewhat and take a look at the reasoning behind it. In doing so, I do not mean to ‘erase’ women or the very real effects of misogyny – they are factual and oppressive.
It is not untrue to say that sexism and misogyny underpin the restriction of abortion rights and the stigmatisation surrounding provision of pregnancy care. Historically, it has been understood that these were ‘women’s issues’ and were therefore relegated to the back burner, at best, by government and policy makers. However, now that our knowledge and experience of the complexities and forms of gender have evolved, it is no longer correct to say that these are solely ‘women’s’ issues.
Trans men get pregnant, give birth, and have abortions. Non-binary and agender people get pregnant, give birth, and have abortions. These are facts. A politics of reproductive rights which ignores these facts is exclusionary to this already marginalised population.
Reproductive rights are undermined because reproductive labour is not considered valuable. Historically, the undervaluation of reproductive labour has been entangled with misogyny. Women, and all people who can become pregnant, were seen as of inferior status in a male/female hierarchical sex binary. This arose from societal, religious, and overridingly, patriarchal power structures. The issue of women’s oppression is very real and continues to be a predominating factor in social life as we know it, whether that be through denial of abortion access, the shocking statistics on the prevalence and prosecution of rape, or the refusal to provide appropriate funding and access to childcare.
Reproductive rights are undermined. But reproductive justice seeks to undo that. Reproductive justice is a framework developed by Black American feminists in the mid 20th century, which seeks to centre justice, as opposed to rights. Rights are often viewed as individual claims against the state, or entitlements which are enacted by an individual agent. Justice is achieved when people are empowered to make decisions about sex, reproduction, and family life in an equitable society. It is socially and institutionally focused and is about improving the systems of life for everyone. Reproductive justice as a framework relates heavily to intersectionality theory, looking at the different factors which influence life and the matrices of oppression and discrimination which hamper the full enjoyment of equality.
I want to emphasise in particular that reproductive justice has a racial aspect, and came from the insights and experiences of Black feminists in a particular social context. Black people are still left behind in the provision of reproductive services and are frequently omitted from discussions around reproductive life. I give all credit to the exceptional feminists who developed, and lived, the reproductive justice framework.
I want, however, to consider reproductive justice in the context of trans life. Trans people are a minority within a minority, and pregnant trans people the most marginalised of reproductive labourers. The use of the language of ‘pregnant people’ has been dismissed and even mocked by commentators outside the community, for applying to a tiny fraction of the pregnant population. It has been said that the use of the term erases women, erases the misogyny inherent in the dismissal of reproductive labour. But the fact is, and it cannot be overlooked, that pregnant trans and non-binary people exist. Trans and non-binary people get pregnant, give birth, or have abortions. Trans and non-binary people need care pathways for reproduction. And it is not unfair for them to ask that we are inclusive in the provision of that care.
In healthcare institutions which systematically undervalue the lives and health of trans and non-binary people, the exclusive use of the term ‘pregnant women’ without the addition of or replacement of ‘and people’ is another signal that trans and non-binary people are an unvalued population. Let us say it again, to be very clear: trans people exist. The erasure of trans and non-binary people from reproductive healthcare services does not serve to make them not exist. All it does is exclude people from inclusive care at some of the most vulnerable moments of their lives.
Commentators, and organisations such as BPAS, argue that the use of additive – ‘women and people’ – or inclusive – ‘pregnant people’ – language would erase the unique oppression faced by women in and around reproduction. But trans people are de facto erased when law and policy refuse to use inclusive language. This is not a potentiality or a matter of abstract academic debate – it is real people who are not being recognised by the healthcare system and by us, the people with the power to influence law and policy. A refusal by us to use inclusive language continues the erasure of a population who need our support now more than ever.
This is, however, not just about language. It is about policy and healthcare provision. The trans healthcare system in this country is not just in crisis – it is in stasis. People are being denied transition related healthcare, from children who need puberty blockers to adults on years-long waiting lists for surgery. Recognition that trans people are people with healthcare needs is the first step – and a tiny first step, but a real one – toward reforming the healthcare system toward reproductive justice and autonomy for all.
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I ended with a call for academics and policymakers, and in particular, those involved in health law, to understand firstly that inclusive language is important, and secondly, that it is only the first step. Mindsets need to change. Trans inclusion in reproductive justice discussions needs to be active and a push needs to be made for substantive provision of reproductive and transition-related healthcare.
It is a difficult time to be working in trans/gender identity-related academia and in reproductive justice. It is hard not to feel like one is mounting a Sisyphean struggle. Solidarity from our colleagues and friends is so necessary. Please heed the call.
Sandra Duffy 