The July update to the General Scheme of the Regulation of Termination of Pregnancies Bill 2018 continues, in spite of commitments from Minister Harris, to be written in gendered language. This post argues that “pregnant people” should be the preferred terminology, in order to be inclusive of persons of all gender identities who will need to access abortion services.
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Some short time after the commencement of the Regulation of Termination of Pregnancies Act 2018, an Irish man will attend his GP’s clinic and request an abortion. He might have in his wallet identity documents reflecting his gender, which he will have obtained under the Gender Recognition Act 2015. That Act will have affirmed that, in the eyes of the Irish law, and without the need to have undergone any surgical or hormonal intervention, our patient is male. Having certified that under one piece of Irish legislation, we could not blame him for thinking that, under other Irish statutes, he could expect not to have his gender invalidated.
The Regulation of Termination of Pregnancies Act 2018 (RTPA), if it is enacted in the current wording (updated July 2018), will invalidate his gender in a number of ways.
Firstly, if he reads the legislation governing the procedure he needs to undergo, he will find that it refers, throughout, to ‘women’. Looking at the definitions contained in the legislation, he will see that ‘woman’ is used to stand for ‘a female person of any age’.
Secondly, if his doctor is unsupportive, he may be told that he is not entitled to access termination of pregnancy. By the letter of the law, he could be told, abortions are for women.
Thirdly, if he does obtain an abortion, his doctor will have no facility to record that a trans man was the patient in question. He will be recorded with all of the other women, and ‘women’, that the Act envisions.
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The question of why it is of critical importance that the RTPA be redrafted in gender-neutral language is not purely semantic. I begin this post with an imagined scenario, but it is not merely an illustrative fiction; it is a narrative with a high likelihood of coming true. Exclusionary language will impact Irish people seeking reproductive healthcare, at a time when trans people in Ireland are already finding access to trans-specific medical care slow and difficult.
Our goal in repealing the Eighth Amendment and enacting the RTPA is to broaden access to abortion care for Irish people and permit more open dialogues about reproductive health and reproductive justice within our medical, legal, and educational systems. In order to achieve this, we must refrain from excluding groups from the system ab initio. Trans persons are a small community often marginalised within societal debates, but the right to recognition of one’s gender and the right to equality before the law mean that their interests must be considered on an equal basis with those of cisgender persons.
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This post uses the abbreviation ‘trans’ to signify all gender-variant persons; all those whose self-affirmed gender differs from their assignation at birth. (Conversely, ‘cisgender’ or cis describes persons whose birth assignation is congruent with their self-affirmed gender.) ‘Trans’, as opposed to ‘transgender’, allows for more scope in the range of identities addressed – both binary-identified persons, trans men and trans women, and non-binary-identified persons of differing gender identities or none at all.
Under the Irish Gender Recognition Act 2015, it is possible for a person to apply for a Gender Recognition Certificate which legally affirms their gender. The application is an administrative process, done on a basis of self-declaration with no need for medical or psychological certification. It is open to persons aged 16 years and over. At present, only binary identities can be certified. Following the receipt of a GRC, “the person’s gender shall from the date of that issue become for all purposes the preferred gender so that if the preferred gender is the male gender the person’s sex becomes that of a man, and if it is the female gender the person’s sex becomes that of a woman” (GRA 2015, s18).
It is inarguable, then, that a trans man is male in Irish law, and does not have to have undergone any medical interventions to receive that status. It follows that there are, or could be, legal men in Ireland with the capacity to become pregnant. All persons with that capacity need to be able to access the full spectrum of reproductive healthcare – including abortion.
The Regulation of Termination of Pregnancies Bill, as it currently stands, seeks to regulate the circumstances under which patients can access abortion services. The Bill envisions abortion being available from a general practitioner without restriction as to reason in the first 12 weeks of pregnancy, and subsequently for the remainder of pregnancy in circumstances of fatal foetal anomaly or serious risk to the life and/or health of the ‘woman’. As mentioned earlier, all references to the patient are framed as ‘woman/women’, and that is defined as ‘a female person of any age’.
I argue that this wording cannot be transferred to the Act as passed for several reasons. Firstly, it is wholly legally unnecessary and risks giving rise to unnecessary complications. Secondly, it risks incompatibility with the effects of the GRA and therefore infringes on the legal status of trans persons. Thirdly, it alienates this already marginalised community further from the national healthcare system.
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I and others have argued that gender-neutral wording for the RTPA should be self-evident. It does not, in my view, give rise to any legal complexities – and indeed it could avert some. Gender-neutral wording, usually ‘pregnant person’, does not exclude persons of any particular gender identity. It covers both legal women and legal men, along with non-binary persons whose status is not yet covered by certification but whose gender identities should be respected by their healthcare professionals.
Neutralising the wording of the Act would also protect against situations in which a trans man could hypothetically be refused an abortion on the basis that he is not a woman and is therefore not covered. Although this may seem far-fetched, consider the range of arguments advanced by both trans-exclusionary advocates, against self-declaration, on the basis of gender essentialism, and anti-choice advocates – including doctors – around the obligation or lack thereof to refer. No person should be left facing discrimination in their access to abortion; legislators should be vigilant about leaving legal loopholes which could allow such situations to arise.
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Gender recognition is a human right; this has been affirmed by the European Court of Human Rights, the Irish courts, and multiple United Nations Human Rights bodies. The ability to assert and have recognised one’s true gender identity falls under the human rights to privacy, dignity, equality, and autonomy. Ireland’s Gender Recognition Act received – and continues to receive – plaudits from the international community for its adherence to these concepts. With this in mind, upholding the legal status of trans persons as affirmed under the GRA should be a priority for the drafters of subsequent laws.
No person should be misgendered in the process of accessing legal healthcare services; ‘pregnant person’ wording ensures that misgendering both at the point of access, and in the subsequent recording of the procedure, does not happen.
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The final point there is more important that it seems at first glance. Statistics are the basis on which decisions are made and successes calculated in the Health Service. Excluding trans persons from representation within those statistics effectively erases their interactions with the healthcare services from the record.
The trans community in Ireland is currently engaged in a campaign, This Is Me, to make healthcare for gender-variant persons a priority with the Department of Health. For its part, the Department has responded with a commitment to better provision of trans healthcare within the year:
“A proposed model of care for transgender children, adolescents and adults was developed last year by the HSE Quality Improvement Division, and submitted to the HSE Divisions of Primary Care, Mental Health and Acute Hospital programme,” a spokesperson for the Department of Health told Independent.ie.
“The model was developed in consultation with key treating clinicians, planners, policy makers, advocates and service users.
“This model is providing the framework for the development of National Gender Clinics and MDTs for children and adults, funded by the HSE, which will involve investment in new posts in 2018.”
The department also said they are “committed” to progressing transgender healthcare in the coming years.
“This is a concerted measure by the HSE to address the waiting times and immediate service needs of children, adolescents and adults in transition. It is envisaged that these National Teams will be in place in 2018, pending successful recruitment campaigns.”
“The HSE, across a number of programmes including mental health, acute hospitals, primary care and social inclusion, is committed to building services for this community in accordance with international best practice.”
(Independent.ie, 10 July 2018)
However, in order to continue tracking and anticipating the needs of the trans community, their interactions with the healthcare services must be visible to the Department. Forcing trans persons to misgender themselves in order to access abortions, and/or forcing doctors to report all patients as ‘women’, erases the existence of trans abortion patients from the statistics and paints a false picture of their numbers and needs.
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Such are the technical arguments. The overarching principle, however, is that as a society, we need to rethink our understanding of reproductive justice. We do not have justice if we do not promote inclusion of marginalised groups, both in our philosophy and our actions. Accessibility and representation are important, and healthcare experiences should take place in an atmosphere of respect.
The conversation about fully recognising the human rights of trans persons in reproductive justice is a longer one to be written about in the future; this post is intended as a summary to address the failings in the RTP Bill. However, it would still not be right to conclude without hearing the words of a person who directly experiences these issues. As Cazembe Jackson, Black trans man and activist, wrote for WeTestify, then:
I feel like it is important to share my story because every time it is told, it normalizes trans people in the reproductive justice conversation. Often when we think of abortion access or even pregnancy and childbirth we call these “women’s issues”. This erases the experience of trans and gender nonconforming folks who also have abortions and give birth to children. It is important for for trans folks to know that they are included in this movement and that there is safe comprehensive care available for them too. I want to do everything in my power to make this a reality.
I wish that folks understood that men have abortions too.That gender is separate from the ability to reproduce children. That every person who has the ability to create children is capable of determining when if ever is the right time to do it.
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We need to understand that these are not “women’s issues”. We need to start by removing trans-exclusionary language from our laws. Please advocate for Minister Harris to keep to his word, and for the revision of the wording of the Regulation of Termination of Pregnancies Bill 2018 to include the terminology “pregnant people”.
Sandra Duffy 