Post-'Roe,' Transgender People Fear for the Future

Post-'Roe,' Transgender People Fear for the Future: States that restrict abortion access have also put harsh anti-trans laws on the books that threaten people's lives.

by Aden Choate, Isabelle Gius,
The American Prospect

August 1, 2022

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Minutes after the Supreme Court issued its decision in Dobbs v. Jackson Women's Health Organization, the country's full-fledged attack on bodily autonomy reached new proportions in the bistate Kansas City metro area, where Dr. Quinn Jackson, a family physician and former abortion provider, treats transgender patients from both sides of the Missouri-Kansas border.

In Kansas City, Missouri, the "trigger ban" outlawed abortion except when the life or health of a pregnant person is jeopardized. While abortion remains legal up to 22 weeks of pregnancy in Kansas, an August 2 ballot question could remove the right to an abortion. The vote promises to be close: A July 17-18 poll of 1,557 likely primary election voters found that 47 percent supported a state constitutional amendment that would remove abortion rights protections, 43 percent opposed the measure, and 10 percent are undecided. For now, abortion access in the metro area is limited to two seriously overwhelmed clinics.

With the demise of Roe, 26 states including Missouri are certain or likely to ban abortion in the months ahead. At the same time, since January over 160 bills targeting transgender and nonbinary people, particularly youth, have been introduced or carried over from last year. Twenty-five of the 26 states certain or likely to ban abortion have also introduced anti-transgender legislation in the past two years. Some states have enacted both types of laws within the same week (Oklahoma) and on the same day (Arizona).

These bills restrict access to gender-affirming care, which the World Health Organization defines as "social, psychological, behavioral or medical … interventions designed to support and affirm an individual's gender identity." Crucially, gender-affirming care is associated with decreased rates of depression, anxiety, and suicidal ideation among transgender and nonbinary youth. The proposals target specific hormone-related treatments, in some cases making it a crime for health care providers and parents to administer them, with serious mental-health implications for young people.

Many of these bills also prohibit transgender youth from participating in student athletics and from using restrooms and other public facilities that correspond with their gender identity. The Ohio House passed a bill at the beginning of June that not only bans transgender athletes, but requires students to undergo "internal and external" genital exams in case of disputes.

"Trans people are afraid for their safety and for their ability to get any kind of medical care, but especially gender-affirming care," says Jackson, one of the few trans physicians providing care to trans patients. "Parents of trans kids are afraid of what will happen to their kids if they can seek care. It's a terrifying time to be trans."

Generational and demographic shifts in American society, particularly ones related to gender and sexuality, have produced extreme reactions from the religious right. As conservative state legislatures and courts attack reproductive rights, they simultaneously attack the right to bodily autonomy for transgender and nonbinary Americans. By doing so, they seek to maintain a status quo that is underlined by white supremacy and Christian moral values. Just last month, Alabama Attorney General Steve Marshall explicitly cited the Supreme Court's decision to overturn Roe in order to defend the state's ban on gender-affirming care, arguing that neither abortion nor gender transition are "deeply rooted in our Nation's history and tradition."

Yet today's attacks on bodily autonomy echo historic and ongoing efforts to control fertility in the U.S. People of color as well as undocumented, incarcerated, and disabled individuals have been disproportionately subjected to procedures such as forced sterilization and penalties like criminalizing pregnancy loss. With notions of fetal "personhood" dominating the legal and political discourse, failure to carry a pregnancy to term, no matter the circumstances, has become cause for suspicion. In fact, a miscarriage around 15 weeks of pregnancy resulted in a manslaughter conviction and four-year prison sentence for a 20-year-old Indigenous woman in Oklahoma.

Perpetuating scientific illiteracy about sex is another mechanism of controlling fertility and ideas about sexuality and gender. Esther Rosario, a philosophy lecturer at Dartmouth College, emphasizes that sex—understood in terms of chromosomes, hormones, gonads, and genitals—is biological, but the way it manifests is also influenced by social values and beliefs as well as restrictions placed on comprehensive health and biology education. "Our social context [interprets] what [biological] properties mean [for] who you are, what you should do with your life, how it is appropriate for you to behave, what sorts of occupations you should have, and what sorts of labor you should engage in," says Rosario.

With this spate of intrusions into their most intimate decisions, women, nonbinary, and transgender people face increasing barriers to access essential health care and a range of personal, educational, and socioeconomic opportunities. Reproductive health clinics are often the only places that transgender people can go for their care, explains Kris Hayashi, executive director of the Transgender Law Center. But as these clinics disappear, the strong connections between movements for trans justice and reproductive justice become clearer.

"There's historically been a lot of alignment," Hayashi says. "Because we see [how] our communities and our health care are being criminalized in very similar ways."

While anti-trans and anti-abortion legislation have had different trajectories over time, they both seek to force a vision onto American society in which biological sex is binary, gender roles are rigid, and LGBTQ people do not exist. It is not coincidental that both have been passed in tandem: Family Policy Alliance, the Heritage Foundation, and most of all, the American Legislative Exchange Council (ALEC) are behind this far-right, state-level legislative activism. During a May 2021 meeting, ALEC leaders discussed their efforts to advance legislation targeting both abortion access and transgender rights, including what they view as "protections" for women and girls against discrimination.

For Adri Perez, the connection between these issues is deeply personal. An abortion at age 16 proved to be the catalyst. The abortion preceded Perez's transition and the passage of the "fetal heartbeat" law last year in Texas, but it has framed their insights into the nature of these simultaneous attacks and how to fight back. Greater coordination between progressive politicians and the grassroots movements for reproductive justice and trans justice could offer a path forward.

"Republicans have decided to make the core of their issues and their party the most extreme members of their base," says Perez. "If we don't see that same investment from … what [are] considered the most progressive voices in the [Democratic] Party, we will continue to be pulled further and further right."

From starting the West Fund, which provided abortion funding in West Texas until the Dobbs decision in June, to working on LGBTQ-focused advocacy with the ACLU, Perez has sought to ensure trans people see themselves reflected in the reproductive justice movement by consistent use of gender-inclusive language.

Not everyone agrees. A recent New York Times headline declared that "women" is a "vanishing word" in the abortion debate. Another article equated the use of terms like "pregnant people" with the right's decades-long effort to ban abortion. Yet advocates emphasize that using inclusive terms is not a matter of erasing women, or even denying the fact that most people seeking abortions are women. Rather, it ensures that transgender and nonbinary people, who already face significant barriers to health care access, receive the care they need.

Exclusive language can hinder that access, deterring patients and affecting their quality of care. It is also inaccurate. Transgender men and nonbinary people become pregnant and have abortions, although there is little data on their experiences and preferences.

Nicole McAfee, executive director of LGBTQ advocacy organization Freedom Oklahoma, explained how the group approached a local abortion fund about adjusting the women-centered language on their website: "If I were someone who didn't know you, and I looked at your website, I would feel like this was not a place that was willing to help me, or that I would have to show up as not my full self in order to receive help."

While language is powerful, it has limits. Paisley Currah, a professor of political science and women's and gender studies at Brooklyn College and the CUNY Graduate Center, points out that definitional battles can alienate individuals who might support policies that materially help transgender people, but have limited familiarity with the concepts of gender identity and expression.

"It's a mistake for trans people and the trans rights movement to spend too much time tinkering and fussing with who is included as the category of 'women' and who shouldn't be included. Instead, we have to focus on the harm a policy causes," Currah says.

In the current political landscape, with the constitutional right to an abortion overturned, and anti-transgender bills proliferating, federal and state courts will not be the entities that reaffirm the right to bodily autonomy. And if the recent trajectory of political attacks on abortion access is any indication of what is likely to happen next for transgender rights, the worst is yet to come. State-level restrictions on minors may escalate into broader attempts to criminalize the existence of all transgender and nonbinary people in a post-Roe America.