Fetal Heartbeats & Gender Stereotypes: How Georgia’s Abortion Bill Harms Transgender People-
Guest Post by Harris R. Mason Esq. Mr. Mason is currently the Superior Court Clerk for the Alapaha Judicial Circuit and a Board Member of the Stonewall Bar Association of Georgia
“Women are to be good wives and mothers.” This is one of the gender stereotypes that underlies Georgia’s “fetal heartbeat” bill. But women are not the only ones who will suffer extreme consequences due to the bill’s reliance on outdated ideas about gender—some transgender individuals will be harmed as well.
Transgender people have a gender identity different than their sex assigned at birth. This makes them uniquely vulnerable to gender-based stereotypes. Gender stereotypes perpetuate the notion that all people of a certain gender identity have similar physical anatomy. Even more progressive people sometimes assume every transgender person seeks to, or is medically able to, transition to a body that is consistent with a “male” or “female” body. However, this is not the experience of many transgender people. Despite identifying with a gender other than female, many assigned female at birth (“AFAB”) transgender individuals often continue to share many of the same primary sex characteristics as women, even after legally transitioning by changing their gender markers from “F” to “M” or, in some states, “X.” For example, to change the gender marker on a Georgia driver’s license from female to male, an individual must show proof of having a “gender reassignment operation.” Georgia has not defined “gender reassignment operation,” thereby allowing transgender people to choose from a wide variety of surgical procedures. While many transgender people elect not to have any surgeries, a common medical transition approach for AFAB transgender men consists solely of a mastectomy procedure that “masculines” the chest—leaving his other existing reproductive organs in place.
How is this relevant to Georgia’s “fetal heartbeat” bill? Relying on the stereotypical assumption that women have one set of reproductive organs and men have another, the bill assumes only women can become pregnant. This assumption is evidenced by its repeated use of terms like “pregnant woman,” “woman,” and “mother.” The harm created by the bill’s assumptions is not just a matter of “political correctness.” Although using law to reinforce anti-transgender bias and gender stereotypes should be a sufficient objection to the bill, it could also have real and devastating consequences for AFAB transgender people.
While the bill permits abortion after a heartbeat is detected in a few limited and tightly-defined situations, these exceptions provide insufficient relief to AFAB transgender people seeking an abortion after such time has passed. Even the most cursory glance at the bill reveals one of the exceptions only applies to people who are legally recognized as women. The exception for medical emergency seeks to prevent the death and irreversible physical impairment of major bodily functions of “the pregnant woman.” Additionally, the bill allows victims of rape to have an abortion if they have filed a police report and the pregnancy is twenty weeks or less. This seems benign enough for AFAB transgender people, right? Wrong. Georgia statutorily defines rape, in part, as having carnal knowledge of a female against her will and defines carnal knowledge as any penetration of the female sex organ by the male sex organ against the female’s will. Therefore, AFAB transgender people who are not legally female cannot be raped and cannot receive an abortion if impregnated by rape.
Of course, it is possible that a sympathetic court could decide AFAB transgender people who have legally changed their gender are “females” under Georgia’s rape statute. Aside from the fact that this would completely disregard the victim’s deeply held sense of self and impede the transgender rights movement, it also would not provide meaningful relief because the bill requires rape victims to file a police report. This reporting requirement necessarily causes disclosure of transgender status for both AFAB transgender individuals who have legally transitioned and AFAB transgender individuals who are perceived as non-transgender men, thus leaving them at risk for anti-transgender harassment and discrimination. And while the AFAB transgender individuals who have not legally transitioned and are perceived as “female” will not face all the barriers others will face, their dignity will nevertheless be diminished by knowing they can only receive an abortion because the State of Georgia is treating them like women.
Simply put, Georgia has a long and sordid history of defining people and bestowing rights by stereotypes and arbitrary bodily characteristics. The “fetal heartbeat” bill continues this tradition by intentionally attacking women’s autonomy and dignity. But make no mistake, the State relies upon gender-based stereotypes do to so at the expense of some of its most vulnerable citizens, AFAB transgender people.
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