the law

You Can Still Say ‘Woman’

But you shouldn’t stop there.

Photo: Kena Betancur/AFP via Getty Images
Photo: Kena Betancur/AFP via Getty Images

In the weeks leading up to what very well may be the American abortion-rights Armageddon, many column inches have been devoted to fretting about the word woman. Last week, Margaret Atwood, feminist novelist in good standing, tweeted the Toronto Star’s column “Why can’t we say ‘woman’ anymore?,” which decried Democrats, from the Biden administration to Representatives Cori Bush and Alexandria Ocasio-Cortez, for using terms like birthing people and menstruating people in an effort to acknowledge that not all of the relevant parties identify as women.

Atwood expressed concern that the ACLU’s Twitter account, in quoting Ruth Bader Ginsburg on abortion, had replaced references to “women” with “people,” a tweet that was written up as a news article in the New York Times. (The ACLU apologized). Times columnist Michelle Goldberg argued in another piece devoted to the tweet that “a gender-neutral version of Ginsburg’s quote is unintelligible, because she was talking not about the right of all people to pursue their own reproductive destiny, but about how male control of women’s reproductive lives makes women part of a subordinate class.” This week, The Atlantic published “Why I’ll Keep Saying ‘Pregnant Women,’” which compared the use of the term “pregnant people” to saying “All lives matter.” Staff writer Helen Lewis wrote, “If we cannot talk about, say, the Texas abortion law in the context of patriarchal control of women’s bodies, then framing the feminist case against such laws becomes harder. No more ‘men making laws about women.’ Instead we get: ‘Some people who are in charge of policy want to restrict the rights of some other people. We oppose that because people’s rights are human rights!’” She added, “Making the slogan more ‘inclusive’ also makes it useless for political campaigning.”

Reports of the death of woman as a term have been greatly exaggerated — the abortion provider challenging Texas’s bounty-hunter abortion ban is called Whole Woman’s Health, to name a visible example. It is true, however, that there is a shift under way in how progressives, and even federal judges, talk about reproduction, one that acknowledges that trans and gender-nonconforming people also seek pregnancy and abortion care. At a time when the legality of abortion has never been more at risk, this transformation requires rethinking long-standing assumptions and strategies, not only about how to frame political rhetoric or win fights on the internet, but about how to operate in the world, including in courts of law. (“Men making laws about women” may describe a lot of history, but it won’t get you very far in the age of Amy Coney Barrett and Marjorie Taylor Greene.)

It may be harder to reconcile trans recognition with feminist analyses of reproduction, but it is entirely possible — indeed, such recognitions enlarge rather than take away from them. These arguments are being puzzled out by scholars and advocates and are already coming before courts in various forms. Contrary to the claim that trans inclusion erases feminists like Ginsburg’s work on gender equality, they actually build on that intellectual and legal history, acknowledging the misogyny and denial of bodily autonomy at the heart of these laws. As an amicus brief in the Mississippi abortion case written by scholars of the Equal Protection Clause puts it, what’s at stake with forced pregnancy is “an individual’s right to be free from state imposition of traditional gender roles.” The word woman is all over these arguments. The question is when, how, and where more is needed.

One cannot examine the arguments against inclusive language without first considering the reason to use it: staggering evidence that transgender people struggle to access health care and face discrimination when they do. Half of transgender people, and 68 percent of transgender people of color, according to a recent report by the Center for American Progress, say they were mistreated by a medical provider in the year before being surveyed, discouraging them from getting medical care.

This is what Chase Strangio, deputy director for transgender justice at the ACLU, calls the “redistributive and practical consequences” of these language changes. “There are people like me who are assigned female at birth, who have uteruses and cervixes,” he says. “If we build a set of legal, cultural and political assumptions about who can and needs to access a kind of care, it enhances barriers.”

Though it has been accused of being politically generic, inclusive language signals a specific, affirmative politics. “I have always felt politically, as well as intellectually, that if the most marginalized people win, then everyone else wins,” Khiara Bridges, a law professor at UC Berkeley, says. “If we win access for trans people of color who are in rural areas, who are poor — then everyone else wins.”

Enacting those principles before a conservative court, however, is hardly simple. In December, the Supreme Court will hear arguments on Mississippi’s attempt to ban abortion at 15 weeks. Bridges was a lead author of the amicus brief from reproductive-justice scholars filed in support of the Jackson abortion clinic’s challenge of the law. A footnote mentions “other categories of people with the capacity for pregnancy” and adds, “Amici hope that, in the near future, the nation’s laws, policies, and jurisprudence will reflect this reality.” But the body of the brief, which lays out the disproportionate impact of the Mississippi law on Black women, who “have been subject to all manner of subjugation and reproductive control, including forced sterilization, forced pregnancy, and forced separation from their children,” uses “women.”

“It becomes a question of the politics of the thing,” Bridges concedes. “In our amicus brief, we are talking to the justices, and I think we would have lost some of the justices had we repeated pregnant people instead of saying woman or women.” Though some Democratic-appointed federal judges have begun adding similar trans-inclusive footnotes to their abortion opinions this year, including rulings on Texas and Alabama laws, even the leftmost member of the Supreme Court, Sonia Sotomayor, has so far stuck to woman-specific language.

That’s strategic; there are substantive fears that the use of trans-inclusive language before the courts will harm the broader cause. On one level, Strangio understands the trepidation. “The reality for trans people in reproductive rights discourse is that our bodies complicate the coherence of a narrative that is already fragile because of the fraught and unsettled nature of the legal protection at stake,” he wrote in a law-review article a few years ago. Feminist advocates have for decades tried to convince courts that laws and regulations that limit reproductive rights — not just banning abortion but also restricting contraception and discriminating against pregnant patients and workers and against parents — should generally fall under a broader framework of illegal discrimination against women as a class.

Instead, the Supreme Court court, historically, has chosen to protect abortion rights under the banner of protecting privacy and liberty. This libertarian conception of private choice made it easier for the Court to uphold the Hyde Amendment, which denies abortion coverage to Medicaid recipients. In 1974, in a case that haunts feminists to this day, the Court also refused to recognize that excluding pregnancy from insurance coverage discriminated against women.

That history partly explains why some feminist legal scholars are hesitant about or even resistant to gender-neutral language around reproduction. “When I hear the words pregnant people,” says Joanna Grossman, a Southern Methodist University law professor who focuses on sex discrimination, “I’m back in 1974 and the Supreme Court saying it has nothing to do with gender.”

“I’ve spent my entire career making the point that you cannot disaggregate pregnancy and gender. Because you don’t understand what pregnancy discrimination is or the harm if you don’t think about the experience of women as a group.” Some of her students bristle at this, she says. “They live in a world in which gender does not get reduced to these two hard categories. That, in the long run, is good for everybody, for us to let go of some of these binaries, which have mostly been hierarchies. In the current time, what I worry about is in the effort of being inclusive of trans people, I don’t want to lose the important identity work that’s been done for women.”

If the Supreme Court is soon to demolish Roe v. Wade in the Texas and Mississippi cases, it is unlikely to replace it, at least in the short term, with robust feminist reasoning. But courts in states with stronger equality protections have historically been more sympathetic to the sex discrimination argument for abortion — nine states have been compelled to provide Medicaid coverage for abortion under court order — and some advocates privately worry that acknowledging that not only women get pregnant could undermine those tenuous gains.

“Once we start thinking about trans people, that gets more complicated,” Katherine Franke, a law professor and the director of Columbia’s Center for Gender and Sexuality Law, told me.

Franke had to contend with this tension in co-writing a brief before Pennsylvania’s state supreme court, arguing that denying Medicaid coverage for abortion violates the state’s equal-rights amendment. “I want to win, and I care about how we get there,” Franke says. “We’re making sure that our briefs are not trans exclusive — but making them trans inclusive is an even bigger lift. For that reason, I’m much more attracted to the stereotyping argument: that the denial of abortion rights is about perpetuating a set of gender stereotypes about who belongs at home or in the boardroom or in politics.”

So Franke’s brief in the Pennsylvania case, co-authored with Ting Ting Cheng, acknowledges that “gender-based stereotypes and norms burden not only women but also men,” as well as those “who do not conform to traditional expectations of what it means to be a man or a woman.” Refusing to cover abortion on the state’s Medicaid, they write, “functionally relegates low income women and pregnant people generally to second class status.”

Or as Strangio puts it, “The idea has been that if you have a uterus, certain things follow from that. That you’re supposed to become pregnant, you’re not supposed to be in the labor force.” Legislators who write those assumptions into law don’t have to recognize the existence of trans or gender-nonconforming people to impose on them their ideas of what it means to be a woman or a mother. “Laws that are targeting women as a class to restrain their reproductive capacity are invested in controlling bodies in such a way that harms all cis women and trans people,” Strangio adds.

Which brings us back to that infamous ACLU tweet last month, which quoted Ginsburg’s remarks at her 1993 confirmation hearing, explaining why she believed abortion rights are a question of equal protection under the Constitution: “The decision whether or not to bear a child is central to a woman’s life, to her well-being and dignity. It is a decision she must make for herself. When the government controls that decision for her, she is being treated as less than a full adult human responsible for her own choices.” In the ACLU’s meme, posted on Twitter, woman and gendered pronouns were replaced by bracketed “people” and “they.”

Strangio says the affair unleashed a torrent of abuse on Twitter and in his voice-mail inbox but that, for the record, he had nothing to do with the tweet. “I’m perfectly comfortable stating the original quote as it was stated, and I know we’re in a world where people are weaponizing everything,” he said.

It is clear, at least to me, that it’s a mistake to rewrite the words of historical figures, even with the best of intentions. But it is equally clear to me as a Ginsburg biographer that it is far too limited to confine her views on reproductive equality to the observation that “male control of women’s reproductive lives makes women part of a subordinate class.” She did resist the infantilization of women implied by the government’s controlling their pregnancies, and the historical division of men and women into separate, hierarchical spheres. And it’s possible that, if she were alive today, Ginsburg would have actively resisted trans inclusivity in the pregnancy context instead of ignoring it; it certainly wouldn’t have been the first time she disappointed her admirers, including me.

But as a litigator, Ginsburg famously brought cases on behalf of male plaintiffs, arguing that the government was unconstitutionally stereotyping them by denying them caregiver benefits. In arguing the case of a servicewoman whom the military tried to coerce into an abortion, which she hoped in vain would establish reproductive freedom, she decried the punishment of her client for her failure to fit “into the stereotyped vision of the correct female response to pregnancy.” In a 1974 letter to Pauli Murray, a gender-nonconforming attorney and activist who was recommending Ginsburg to the ACLU board, she described “the central theme” of her work: “Each person is entitled to develop his or her own potential, and should not encounter artificial barriers, or be steered towards an assigned place based on a birth characteristic that there’s no necessary relationship to ability to contribute to society.” And in one of her last votes as a justice, she agreed that “because of sex” in the Civil Rights Act’s ban on employment discrimination, traditionally understood to apply to women and men, also extends to discrimination on the basis of sexuality and gender identity. “RBG was all about this sex as structure —that’s why she brought cases on behalf of men,” Strangio observes. “It was always how we realize ourselves outside these constraints of expectation.”

Strangio’s answer to the question of why you can’t say women anymore is that you can. “We can talk about one aspect of sex discrimination — which is the troubling and rich history of how misogyny has operated to control, punish, and compromise the survival opportunities for anyone who is not a cis man, and specifically for women as a class,” he says. “That is part of the history that is important to tell.” But you can’t stop there. “It’s also true that all of that was happening in contexts of white supremacy and ableism. We can’t just tell a story of women as a class targeted. Well, which women, why and how? There’s lots more to that story.”

What emerges from all this is a loose taxonomy of when it makes sense to say woman in a reproductive-rights conversation: when you’re drawing from the historical record. When you’re talking about the intent of these laws, but not leaving it at that when you’re describing whom they actually affect. When you’re talking about individuals who identify as women, but without assuming that they are the only ones who are seeking reproductive care or whose bodily autonomy is being curtailed. This too could change, and no one says it’ll be simple. Strangio says, “Change is hard. I get that. Trans people know that better than anyone. We have to contend with discomfort with change in every aspect of our lives.”

Grossman says, “I want to be able to fight for women as a category,” but acknowledges “we’d all be better off as a future in which gender mattered less.” And anyway, she adds, “I think I’m going to be on the losing side of this, and I’m not sure it’s a bad thing.”


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You Can Still Say ‘Woman.’ But You Shouldn’t Stop There