Challenging the Inconceivability Fallacy: Post-Dobbs Abortion Rhetoric, Transgender Visibility, and What the United States Can Learn from Latin America’s “Green Wave”

Introduction

Archived Recording (Josh Hawley)

You’ve referred to people with a capacity for pregnancy. Would that be women?

Archived Recording (Khiara Bridges)

Many women, cis women, have the capacity for pregnancy. Many cis women do not have the capacity for pregnancy. There are also trans men who are capable of pregnancy as well as non-binary people who are capable of pregnancy.

Archived Recording (Josh Hawley)

So this isn’t really a women’s rights issue, it’s a—it’s a what?

Archived Recording (Khiara Bridges)

We can recognize that this impacts women while also recognizing that it impacts other groups. Those things are not mutually exclusive, Senator Hawley.[1]

America has long been fascinated with the image of the pregnant man. Whether as a source of revile, ridicule, humor, or horror, the trope abounds in various forms of media and pop-culture over the past century.[2] Indeed, it provided one of the most unexpected, and in many ways baffling, movie scenes of the early 1990s—a hulking Arnold Schwarzenegger rendered effeminate, nine months pregnant, donning maternity wear, and delivering a baby on screen, all alongside Danny DeVito in a RomCom perhaps more remarkable for its precocious subversion of the gender binary and its broadcast of a certain form of queerness than for the inherent quality of its comedy.[3] Of course, the engine powering much of the humor in the film was the generally accepted presumption that men cannot get pregnant, and that to even suggest otherwise would be risible—an idea that this Note refers to as the “inconceivability fallacy.” Hence the snarky text imprinted on the film’s marketing poster: “Nothing is inconceivable.”[4]

Although it is often dismissed as one the worst movies of Arnold Schwarzenegger’s career, perhaps the greatest irony of Junior as it approaches its thirtieth anniversary is that it was unintentionally correct. It is, admittedly, going too far to say that nothing is inconceivable in the realm of conception,[5] but the idea of the pregnant man certainly is not inconceivable.[6] With the benefit of more modern understandings of sex and gender, we now understand that transgender men, non-binary persons, intersex persons, and many others along the gender spectrum are capable of conceiving a child.[7] As a result, we can now see the flaws that undergird the inconceivability fallacy. Put simply, we can now see that, far from being inconceivable, the possibility of a pregnant man is both a physiological and sociological fact.[8]

Consider the case of Thomas Beatie, the transgender man who made global headlines in 2008 when he appeared on the Oprah Show as “the world’s first pregnant man.”[9] Beatie was assigned female at birth, had gender-affirming surgery involving a double mastectomy and phalloplasty—meaning his clitoris was surgically reconfigured to mimic a phallus—and legally changed his sex marker from “female” to “male” on his official identity documents.[10] In addition, he took bimonthly testosterone injections for years to suppress feminine sex characteristics and decided to grow a beard.[11] Throughout this process, however, Beatie retained his female reproductive organs, which later allowed him to become pregnant through artificial insemination.[12] This explanation for Beatie’s pregnancy is far less whimsical than what transpired in Junior,[13] but both instances of the “pregnant man” capturing the public imagination shared one central feature—both forced the American public to rethink not only the gender binary that we traditionally associate with pregnancy but also the language that we use to describe the concept of pregnancy in light of these challenged assumptions. As described by a New York Times opinion writer at the time, “[i]n the discussions that followed [Beatie’s] announcement, what became poignantly clear is that there is no good language yet to discuss his situation, words like an all-purpose pronoun to describe an idea as complex as a pregnant man.”[14]

In 2022, this tension regarding the language that we use to describe pregnancy and the gender-diverse array of individuals who need access to reproductive health care was once again thrust into the national spotlight, this time for far less benign reasons. On May 2022, the news outlet Politico leaked a draft of the U.S. Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization,[15] the case that ultimately overturned two of the Court’s landmark abortion-rights precedents—Roe v. Wade[16] and Planned Parenthood v. Casey[17]—and disavowed federal constitutional protections for abortions.[18] Predictably, protests against the ruling were immediate and impassioned, with many pro-choice demonstrators invoking slogans that have been associated with the abortion-rights and feminist movements for decades: “Stop the war on women,” “Men shouldn’t be making laws about women’s bodies,” “No uterus, no opinion.”[19] Yet, many advocacy groups recognized that this kind of rhetoric excludes a wide swath of persons impacted by the decision—not only transgender men, nonbinary persons, and many other gender-diverse persons with a capacity for pregnancy, as noted above, but also women without a uterus because of birth circumstance or medical procedure. This realization forced several organizations to change their language,[20] opting for “gender-inclusive” phrases that more accurately capture the entire population of persons with a capacity for pregnancy who are threatened by restrictions on access to abortion care.[21]

This evolution has caused quite a furor in public discourse, with advocates of gender-inclusive language frequently being subject to ridicule, rage, or rejoinder. Perhaps no reaction better encapsulates the views of many opponents of gender-inclusive pregnancy and abortion-rights language than Bette Midler’s viral Twitter post from July 4, 2022: “WOMEN OF THE WORLD! We are being stripped of our rights over our bodies, our lives and even of our name! They don’t call us ‘women’ anymore; they call us ‘birthing people’ or ‘menstruators’, and even ‘people with vaginas’! Don’t let them erase you! Every human on earth owes you!”[22]

Bette Midler was neither the first nor the last prominent figure to stir controversy in this manner. For many readers, the Midler incident called to mind the trans-exclusionary comments linked to J.K. Rowling in recent years, including when she mockingly responded to the article “Opinion: Creating a More Equal Post-COVID-19 World for People Who Menstruate” with the following Twitter caption: “‘People who menstruate.’ I’m sure there used to be a word for those people. Someone help me out. Wumben? Wimpund? Woomud?”[23] These comments recently resurfaced as part of a broader controversy surrounding a New York Times opinion piece by Pamela Paul,[24] who herself has been a vocal critic of gender-inclusive language when describing pregnancy.[25] And of course, there is the work of The Atlantic’s Helen Lewis, who has accused the left of “declaring a war on saying ‘women.’”[26]

The exchange between Senator Josh Hawley and U.C. Berkeley Law Professor Khiara Bridges in this Note’s epigraph demonstrates how the broader debate over gender-inclusive pregnancy rhetoric has extended from the public forum into the political sphere. The instantly viral quarrel occurred during a Senate Judiciary Committee hearing regarding the socio-legal ramifications of the Supreme Court’s decision in Dobbs,[27] which reached a boiling point when Professor Bridges accused Senator Hawley’s questioning of being transphobic and dangerous.[28] Though certainly more contentious than earlier incidents, the Hawley-Bridges dispute was redolent of a similar headline-grabbing moment during Justice Ketanji Brown Jackson’s Senate confirmation hearings, during which Senator Marsha Blackburn went on a tirade against transgender rights and asked then-Judge Jackson, “Can you provide a definition for the word ‘woman’?”[29] As many scholars and commenters have noted in the past, politicians are intelligent—or at least politically savvy—on hot-button issues; they ultimately adopt the rhetoric that they believe most appeals to their constituents.[30] Certainly, debates on this issue will continue to unfold in public and political forums as our shared lexicon calibrates toward a new equilibrium—ideally one that is appropriately equitable, inclusive, and rights-expansive.

This Note argues that the recent recalibration toward gender-inclusive pregnancy language in the United States’ social, political, and clinical discourse has not been reflected in critical areas of its federal legal discourse. In the entire 213-page Dobbs opinion, for instance, there was not a single reference to transgender, nonbinary, and other gender-diverse persons.[31] Even the liberal Justices’ joint dissent in that case evinced the sort of women-centric, trans-exclusionary language that Bette Midler, J.K. Rowling, and Helen Lewis espouse.[32] And this was despite the fact that, arguing from a place of dissent, the liberal Justices could have been as bold and expansive as possible in articulating their vision for abortion rights in the future.

The United States has much to learn from how Latin America’s “Green Wave” nations have approached this issue. Neither Argentina, Mexico, nor Colombia have shied away from gender-inclusive rhetoric in their most recent wave of landmark abortion expansions.[33] Rather, these nations have unequivocally demonstrated their commitment to the essential premise of this piece: although abortion is indeed a “women’s issue,” it is not exclusively such—it could, and should, be recognized as a transgender issue as well.

This Note offers three essential—though not exhaustive—reasons why gender-inclusive abortion-rights rhetoric matters. First, drawing on the work of scholars like Cass Sunstein and Chris Eisgruber, this piece analyzes the “expressive” and “educative” functions that gender-inclusive legal recognition can play in countering stigma, discrimination, and harm.[34] Second, this piece demonstrates that gender-exclusive language has serious legal implications; not only does it encourage narrow interpretations of the law and the subsequent denial of legal benefits, but it also undermines efforts at galvanizing the sort of unified, coalition-based advocacy that many activists believe to be the strongest strategy for generating institutional change.[35] Third, this piece highlights the role of gender-inclusive abortion-rights rhetoric in advancing fundamental principles of good legal writing and advocacy, including precision, clarity, respect, dignity, fairness, and justice.[36]

This Note sits at the intersection of two major lines of scholarship. One line of scholarship has challenged our legal system’s rigid binary of sex and gender and considered what various bodies of law might look like if gender were decoupled from sex, including in the realm of pregnancy.[37] Another line of scholarship—both legal and journalistic—has studied the groundbreaking abortion expansions of the “Green Wave” countries and sought insights that might be transferrable to the United States, with a focus on the grassroots-advocacy tactics and constitutional reasoning observed in those nations.[38]

This is the first piece to the Author’s knowledge that coalesces the foregoing literature bases as part of a distinct project that looks to the “Green Wave” nations specifically for guidance on the rhetoric that the United States should be using to discuss pregnancy and abortion rights, rather than focusing solely on the grassroots strategies and legal reasoning of those nations. In that respect, this piece is also adjacent to a longstanding base of comparative law literature on “legal transplants,”[39] though its objective is to illuminate the potential for transplanting essential words and expressions rather than substantive legal doctrines. The idea is that, by focusing solely on substance rather than rhetoric, current scholarship on the “Green Wave” countries has failed to recognize not only (1) an essential element of what makes those nations’ abortion laws unique, but also (2) important ways in which those nations exemplify the potential for “unsexing” pregnancy in the way that some U.S. legal scholars have long thought necessary in theory but lacked real-world case studies in practice.

Part I of this Note offers an essential primer on gender-inclusive terminology and concepts and sets the foundation for the descriptive and normative analyses that follow. Part II offers a novel contribution to the existing literature by contrasting the abortion-rights rhetoric of the “Green Wave” nations with that of the United States. Part III discusses why rhetorical differences between the “Green Wave” nations and the United States matter and why the latter would be wise to adopt the gender-inclusive abortion vernacular of the former. This Note concludes by offering parting remarks and a word of inspiration: change in the United States is not only necessary; it is possible.

I. A Primer on Gender-Inclusive Terminology and Concepts

A. Who Can Get Pregnant? Challenging the Inconceivability Fallacy

1. Cisgender Pregnancy

Presented with the question, “Who can get pregnant?”, most individuals would respond with a fairly intuitive answer: “women.” And they would be correct, in a certain limited sense. After all, many cisgender women are indeed capable of pregnancy, and they are accountable for a large proportion of the approximately 3.6 million births registered in the United States each year.[40] The science involved in such instances is complex, but most individuals will have encountered it by the end of high school. At the risk of oversimplifying, pregnancy in a cisgender woman occurs after a fertilized egg successfully travels down the fallopian tube and implants in the uterus, at which point an embryo starts growing.[41]

Yet, it is also important to note the ways in which a conceptualization of pregnancy that exclusively centers “women” simultaneously cuts too broadly and too narrowly. First, this view is overly broad in the way that it fails to acknowledge how pregnancy is still impossible for transgender women—although that could change soon[42]—and may also be outside the realm of possibility for some cisgender women who struggle with infertility. Second, this view is unduly narrow in the way that it excludes a wide array of gender-diverse individuals who retain a capacity for pregnancy despite not identifying as women. These individuals are too often excluded from the conversation—in no small part because of a lack of awareness in conjunction with entrenched societal beliefs that “men cannot get pregnant” (the inconceivability fallacy)—but they are equally capable of reproduction and in need of reproductive care.[43]

2. Transgender, Nonbinary, and Other Gender-Diverse Pregnancies

After years of invisibility, marginalization, and stigmatization—much of which persists today—transgender and gender-diverse pregnancies have gradually begun to find broader acceptance and rigorous study in the medical literature.[44] The bottom-line from this research is clear: anyone who has a fully functioning uterus and ovaries can become pregnant and give birth. As such, transgender and gender-diverse persons who were assigned female at birth and retain their reproductive organs may have the capacity to become pregnant, either through sexual intercourse or assistive reproductive interventions.[45]

Although many transgender pregnancies are planned, like Beatie’s, data suggests that some are unintended.[46] These unintended transgender pregnancies sometimes arise from missing testosterone,[47] but experts emphasize that transgender men can also have unintended pregnancies “while taking or still amenorrheic” from testosterone, as these treatments are not equivalent to birth control.[48] Regardless, whether planned or unintended, the resounding point is the following: transgender, nonbinary, and other gender-diverse persons need and are entitled to reproductive care—including abortion—just as cisgender women need and are entitled to such services.

B. Gender-Inclusive Pregnancy and Abortion-Rights Language

Recognizing the multiplicity of gender identities that experience pregnancy and seek reproductive care like abortions, various medical providers, government organizations, and advocacy organizations have demonstrated a commitment to using more gender-inclusive—sometimes also referred to as “gender-neutral”—language in recent years. For instance, the NIH has issued the following guidance:

Both pregnant women and pregnant people are acceptable phrases. It is unnecessary to avoid the word women by substituting phrases like birthing people, or people with uteruses. Neutral terms like pregnant patients, pregnant people, or other wording as applicable (e.g., pregnant teens), present an inclusive alternative. Use judgment and context to determine whether to use pregnant women or pregnant people / pregnant patients.

Using more limited and specific language is sometimes important. For instance, if discussing a study that only involves cisgender women, gender-specific language (pregnant women) would be most accurate to reference that study’s findings. If the word women is preferable, but transgender and nonbinary people are also referenced, phrasing like women and other pregnant patients can provide an inclusive alternative.[49]

In this same vein, the ACLU posted the following statement on Twitter after the Supreme Court overturned Roe v. Wade: “Today’s decision is a gender, racial and economic justice catastrophe with deadly consequences. Women and people who can become pregnant have been forced into a second-class status. The impacts will fall hardest on Black women who already face a severe maternal mortality crisis.”[50]

This shift has not come without controversy.[51] As proponents of gender-inclusive language retort, however, many claims levied in opposition generally miss the mark. First, regarding those opponents who fear that gender-inclusive language could have an “‘othering’ effect” and “reduce [the] visibility of women”[52] in society, they wrongly frame the use of this language as a zero-sum game and neglect to acknowledge the much larger base of research demonstrating the host of harms associated with gender-exclusive language.[53] The same can be said in response to critics like Helen Lewis who equate the use of gender-inclusive language with “declaring a war on saying ‘women.’” This is an unfair mischaracterization that obscures the nuances of the movement. No one is saying that it is impermissible to say “women” or that one need use “othering,” “dehumanizing” language that refers only to body parts when discussing certain issues—to the contrary, the NIH guidance above explicitly noted that “[b]oth pregnant women and pregnant people are acceptable phrases. It is unnecessary to avoid the word women by substituting phrases like birthing people, or people with uteruses.”[54] Rather, the argument in favor of gender-inclusive pregnancy language is that one should be mindful of when “women”-centric language is incomplete, hurtful, and potentially even harmful,[55] and one should “[u]se judgment and context to determine whether to use pregnant women or pregnant people” in such instances. Transgender activists could not be clearer about their support of this contextualized, nuanced approach to gender-inclusive language:

To the extent that people say that anyone has a problem with [saying women] in the trans community, that’s an actual lie. . . . The times when it might be appropriate to use “pregnant people” is when you were talking about the universe of people who can get pregnant, some of whom are actually men, trans men like me, and some of whom are non-binary people who don’t identify as men or women.[56]

For the reasons noted in the preceding Section, access to abortion services is one critical area of the law that implicates “the universe of people who can get pregnant”—certainly cisgender women, but also transgender, nonbinary, and other gender-diverse persons. The argument proffered in this Note is thus that America’s legal vernacular should reflect this reality and adopt the gender-inclusive pregnancy and abortion-rights terminology that is gradually penetrating its sociopolitical discourse. Part II of this Note discusses the lessons that we can glean from Latin America’s “Green Wave” nations in this respect, and Part III discusses why these lessons matter.

II. The Abortion-Rights Rhetoric of the Latin American “Green Wave” Nations and the United States

The decades-long international order of abortion rights has undergone a radical shift in just the past three years. At the start of 2021, according to a comprehensive study by the Center for Reproductive Rights,[57] sixty-six countries either prohibited abortion altogether or allowed it only to save a woman’s life; sixty-four countries allowed abortion to preserve a woman’s health—broadly defined[58]—or under a variety of socioeconomic circumstances; and seventy-three countries allowed abortion on request for a certain number of weeks. Among the countries in the latter category, the most common gestational limit for abortion remains twelve weeks. The United States, by contrast, has long been viewed as a global leader in allowing abortion without restrictions until viability—about twenty-three weeks—dating back to the Supreme Court’s 1973 ruling in Roe v. Wade.[59]

The foregoing global abortion-rights landscape was dramatically altered when the U.S. Supreme Court issued its June 2022 decision in Dobbs v. Jackson Women’s Health Organization.[60] In disavowing Roe v. Wade’s federal constitutional protections and returning the authority to regulate abortions to “the people [of the states] and their elected representatives,”[61] the United States joined just three other countries—El Salvador, Nicaragua, and Poland—that have scaled back abortion rights since 1994.[62] Essentially, after fifty years of pro-choice advocacy groups abroad looking to the United States as a beacon of hope and a guidebook for how to achieve similarly expansive abortion liberties, the United States abdicated its position as “the most influential nation in the Americas” in inspiring a global trend toward abortion liberalization.[63] Rather, the nation known for decades as being a positive outlier in the push for abortion-inclusive reproductive justice has now become an outlier in the opposite direction, and this reversal has already begun to embolden anti-abortion forces abroad.[64]

In contrast, three of Latin America’s four most populous nations—Argentina, Mexico, and Colombia—have expanded abortion protections in the past three years. Argentina passed a bill that legalized abortion in the first fourteen weeks of pregnancy in December 2020,[65] Mexico’s Supreme Court Justice of the Nation decriminalized abortion by way of four historic opinions between September 2021[66] and September 2023,[67] and Colombia’s Constitutional Court voted to decriminalize abortion in the first twenty-four weeks of pregnancy in February 2022.[68] The victories in all three countries were linked to a grassroots abortion-rights movement known as the “Marea Verde” or “Green Wave”—a reference to the color of the bandanas, t-shirts, and handkerchiefs worn by its activists—that has been advocating for change across Latin America.[69] Suddenly, a largely Catholic, religiously conservative region known for having some of the most restrictive abortion laws in the world has traded places with the United States and become a source of inspiration for other nations.

Several comparative law and policy studies have focused on the groundbreaking changes introduced in the “Green Wave” countries and sought insights that might be transferrable to the United States. These works have often focused on the grassroots tactics and constitutional reasoning adopted in those nations.[70] For instance, in A World Without Roe: The Constitutional Future of Unwanted Pregnancy, Julie Suk “examines the constitutional law of abortion access in peer democracies,” including Argentina, Mexico, and Colombia, and argues that “the common thread in laws liberalizing abortion around the world [has been] the understanding of unwanted pregnancy as a public problem for which the State bears responsibility, rather than a purely private matter as in Roe.”[71] Indeed, this recent interest among legal scholars is part of a broader trend also seen among activists[72] and journalists[73], as U.S. pro-choice forces seek to regroup, recalibrate, and rebuild in the wake of Dobbs.

In the ensuing paragraphs, this Note takes an alternative analytical angle and focuses on an underappreciated source of lessons from the “Green Wave” nations—not the organizing tactics and legal reasoning, but the legal language as expressed through law and policy. Ultimately, this analysis reveals a remarkable rhetorical progressivism in the “Green Wave” nations that might be surprising given their religious-conservative roots. Neither Argentina, Mexico, nor Colombia have shied away from the gender-inclusive abortion-rights rhetoric espoused in this Note and eschewed by some within the United States.

A. Argentina

1. The Voluntary Interruption of Pregnancy Law

On December 30, 2020, Argentina’s National Congress officially passed the historic Voluntary Interruption of Pregnancy Law (VIPL).[74] At its core, the VIPL legalized abortion—which it refers to as the “voluntary termination of pregnancy”—up until the fourteenth week of pregnancy. In addition, it guaranteed that abortions in Argentina would be available for free and sought to make abortion access universal. Under the VIPL, an abortion procedure can be requested at any public or private health facility, and doctors are legally bound to either perform it or refer the patient to another physician or health facility. Lastly, the law established a series of principles to guide its application on behalf of all medical providers, legal entities, government officials, and related parties.[75]

It is difficult to overstate the significance of the VIPL. First, the law is certainly significant for the people whom it seeks to protect and the injustices it seeks to combat. Second, the law is significant for the impact that it had on other nations in Latin America. Various sources have noted that, although Argentina was not the first Latin American country to legalize abortion,[76] it was the spark that ignited the Green Wave abortion-rights movement in others.[77] Third, the law was significant for how its enactment seemed to signal at least a partial break from the Roman-Catholic and evangelical-Protestant forces that have historically proven effective at impeding pro-choice abortion efforts in Argentina.[78] As an example, Argentina is the birth nation of Pope Francis, who, at the time that the National Congress was debating the VIPL, sent a handwritten letter to a congresswoman reiterating the importance of protecting life against attempts to legalize abortion.[79]

Most of all, for the purposes of this Note, the VIPL is significant for the gender-inclusive language that it used throughout its twenty-two Articles. For instance, Article 1 of the law, which asserted its objective, was unequivocal about who the VIPL was intended to protect: “The purpose of this law is to regulate access to voluntary termination of pregnancy and post-abortion care, in compliance with the commitments assumed by the Argentine State in matters of public health and the human rights of women and people with other gender identities with the ability to gestate . . . .”[80] This language is repeated throughout some of the most important introductory sections of the law—Article 2’s summary of the rights that “women and people with other gender identities with the capacity to gestate” possess;[81] Article 4’s more specific declaration of the right to terminate a pregnancy up to and including the fourteenth week of gestation;[82] and Article 5’s enumeration of the minimum protections that health personnel must guarantee when providing abortion or post-abortion care.[83]

Even when altering the exact terms used, the VIPL never veers from its commitment to gender-inclusive language. For instance, as an alternative to “women and people with other gender identities with the capacity to gestate,” the law in seventeen locations refers to the rights of “pregnant person[s].”[84] One such instance is in the aforementioned Article 5, which seeks to ensure that access to an abortion is universal for all persons in need: “Every pregnant person has the right to access the termination of their pregnancy in the health system services or with their assistance, within a maximum period of ten (10) calendar days from their request and under the conditions established in this law.”[85] Another example occurs in Article 4’s description of the specific circumstances under which an abortion may be permitted beyond the fourteen-week gestational limit: “Outside of the term provided in the previous paragraph, the pregnant person has the right to decide and access the termination of their pregnancy only in the following situations . . . .”[86]

Note the remarkable similarity between the language in the foregoing provisions of the VIPL and the gender-inclusive language urged by the U.S. National Institutes of Health, as discussed in Section I.B. of this Note: “If the word women is preferable, but transgender and nonbinary people are also referenced, phrasing like women and other pregnant patients can provide an inclusive alternative.”[87] In this way, Argentina’s VIPL demonstrates that the fears vocalized by those who opposed gender-inclusive language on the grounds that it would erase women were misguided. Argentina’s law does not utilize oft-ridiculed phrases like “people with uteruses” or “bodies with vaginas” to avoid mentioning women in the law. To the contrary, it either (1) opts for an approach that names the full range of persons impacted but leads with women, recognizing that they are the largest population involved—”women and people with other gender identities with the ability to gestate”—or (2) utilizes gender-neutral language that has gained general acceptance in the medical community and is duly respectful of women and gender-diverse persons alike—”[e]very pregnant person.”[88] With the VIPL, Argentina became an archetype worldwide for points that advocates of transgender visibility had been making for years: implementing gender-inclusive pregnancy language in the law does not necessitate an erasure of women nor does it require an absurd distortion of otherwise intuitive language; women and gender-diverse persons with similar capacities for pregnancy can coexist, and the law is made all the more effective when it explicitly recognizes this.

2. The Long March Toward a Gender-Inclusive Outcome

The origins of the fight for gender-inclusive abortion-rights rhetoric in Argentina are inextricably linked to the rise of the “Green Wave” movement itself. Although the earliest vestiges of the Green Wave can be traced to the 1970s,[89] the birth of the modern movement is often attributed to 2005, when the National Campaign for the Right to Legal, Safe, and Free Abortion (the Campaign) was created.[90] The aim of the Campaign was to form a massive civil-society collective advocating for the decriminalization of abortion, principally by marching in the streets, lobbying in government settings, disseminating key messages through major media channels, conducting petition-signing drives, partnering with public-health organizations, and biannually presenting its own abortion-legalization bill to Congress.[91] Notably, although the Campaign would eventually boast the backing of over three-hundred supporters,[92] some of the first endorsers were transgender-advocacy organizations like Asociación de Travestis, Transexuales y Transgéneros de Argentina (Association of Transvestites, Transsexuals, and Transgenders of Argentina).[93] Their actions were synergistic—the Campaign supported LGBTQ+ efforts like the push for Argentina’s equal-marriage[94] and gender-identity[95] laws, and LGBTQ+ organizations contributed significantly to abortion-decriminalization efforts.[96]

Although the Green Wave’s campaign for abortion liberalization in Argentina has been characterized by its scale and intersectionality,[97] it is clear that the road to including transgender and other gender-diverse persons was rife with challenges. Interviews with Green Wave activists detail several difficult conversations on the issue of whether and how to recognize the experiences of gender-diverse persons with a capacity for pregnancy in Campaign discourse.[98] Some organizers advocated vehemently for gender-inclusive language and alliances with LGBTQ+ groups.[99] For these individuals, it was (1) necessary to acknowledge how the abortion-rights movement and the feminist struggle more broadly had changed in response to new perspectives on gender and sexuality, and (2) strategic to partner with the LGBTQ+ community in light of its legislative success in lobbying Congress for same-sex marriage and gender-identity laws.[100] Nevertheless, some organizers were resistant. In their view, “the issue was ‘political protagonism’ and ‘strategy’”[101]—adopting more gender-inclusive abortion-rights rhetoric seemed normatively concerning because it risked shifting the focus away from cisgender women and politically inexpedient because it threatened to lose the votes of conservative lawmakers.[102]

Debates over how to frame the abortion-rights rhetoric of the Campaign reached a boiling point in 2014, when the movement’s organizers considered calls to revise the model abortion-rights bill that they had biannually been submitting to Congress.[103] That year, gender-diverse activists in Argentina became increasingly more visible in public conversations around abortion, with a focus on challenging the women-centric, transgender-exclusive perspectives that previously defined the movement. For instance, during a roundtable titled “Men Discuss Voluntary Abortion,” Argentine philosopher and trans activist Blas Radi called for overcoming patterns of “cissexism” (prejudice or discrimination against transgender persons) within feminist activism, arguing that transgender struggles and abortion-rights struggles generally share a common ground in their pursuit of bodily autonomy.[104] Moreover, Radi posited that breaking exclusive associations between cisgender women and pregnancy would be strategically advantageous for the women’s liberation movement: “If we do not want to think of women as forcefully reproductive then we should question why we continue to hold that in order to reproduce one must be a woman.”[105] Meanwhile, other gender-diverse activists focused on framing gender-inclusive abortion-rights rhetoric as part of a comprehensive approach to gender-inclusive healthcare.[106]

In response to increased visibility in 2014, transgender and other gender-diverse abortion-rights advocates realized significant victories in the ensuing years. First, in 2015, Argentina’s National Ministry of Health updated its “Protocol for the Comprehensive Care of People with the Right to Legal Interruption of Pregnancy” so that it explicitly recognized the experiences of transgender persons and all other “persons with the ability to carry a pregnancy.”[107] Then, in 2016, the National Campaign for the Right to Legal, Safe, and Free Abortion made a major adjustment to the model bill that it had been presenting to Congress. The 2016 bill’s language remained women-centered, but it included an article that extended abortion rights to all “persons who can become pregnant.”[108] Even more promising, while the bill was still under debate within the House of Representatives in 2018, its language was modified to be more inclusive; its separate article for transgender persons was deleted and instead every reference to women in the main text was changed to “women and pregnant persons.”[109]

The astounding rhetorical progressivism in the House of Representatives’ 2018-2019 bill was a product of the inroads that gender-diverse abortion-rights advocates had made—and were continuing to make—by that time. Although the Senate ultimately voted to reject the 2018-2019 bill, the stage had been set for the Voluntary Interruption of Pregnancy Law that ultimately passed in 2020. Not only had “the cultural battle over abortion . . . undoubtedly [been] won that year,”[110] but the rhetorical battle had as well.[111]

In other words, the 2020 VIPL’s gender-inclusive outcome was never guaranteed; it was deliberately crafted and compelled by the persistence of gender-diverse activists over several years and across various advocacy channels. These bold individuals had forged a sociopolitical context in which legislators and other key parties could no longer view the National Campaign for the Right to Legal, Safe, and Free Abortion as solely a women’s issue. The result was a landmark abortion-rights victory that not only launched the pro-choice “Green Wave” movement across Latin America but also established a powerful linguistic template for nations like Mexico and Colombia to follow when deciding which groups to include in their respective abortion decrees.

B. Mexico

1. Landmark Supreme Court Decisions in the States of Coahuila and Sinaloa

In September 2021, the Mexican Supreme Court issued two unanimous opinions that expanded access to abortion in the states of Coahuila and Sinaloa. First, on September 7, the Court declared unconstitutional Article 196 of the Penal Code of Coahuila, which had previously mandated a sentence of up to three years in prison for any woman who voluntarily underwent an abortion.[112] This was the first time that Mexico’s highest court had ruled in favor of decriminalizing abortion in any of the nation’s states.[113] Then, two days later—largely on the basis of its ruling in the Coahuila case—the Court declared unconstitutional a provision within the Constitution of Sinaloa that “protect[ed] the right to life from the moment an individual is conceived.”[114] The latter decision did not per se imply the decriminalization of abortion in Sinaloa or in states where similar constitutional provisions existed, but it did establish that any pregnant person whose abortion was denied or prosecuted based on the “right-to-human-life-from-conception” standard would be eligible to pursue an amparo (a form of constitutional review and injunction that defends Mexican citizens against human-rights violations).[115]

Like Argentina’s VIPL in 2020, the Mexican Supreme Court’s two landmark abortion rulings in 2021 were significant not only for their transformative legal substance but also for their gender-inclusive language. In the Coahuila decision, for instance, the Court began by differentiating between sex and gender in a way that laid the foundations for the entire opinion: “it is essential to express that this High Court guides its analysis and decision from the obligation to . . . detect and eliminate all barriers and obstacles that discriminate against people based on sex or gender.”[116] In the paragraph that immediately followed—one of the most groundbreaking segments of the decision, because of the paradigm-shifting approach that the Court took in defining the population affected by its ruling—the Court made it clear why it felt the need to distinguish between the concepts of sex and gender:

[I]n terms of gender and intersectionality, the spectrum of this Court’s decision includes both women and people with the capacity to gestate, a fundamental concept of inclusive language in which the underlying purpose is recognition and visibility for those people who, belonging to diverse gender identities other than the traditional concept of women, nevertheless have bodies with the capacity to gestate (for example, transgender men, non-binary people, among others).[117]

Although the Mexican Supreme Court perhaps could have reserved its use of gender-inclusive language to the foregoing prefatory paragraphs, it was adamant about referencing the full spectrum of affected persons whenever relevant. Intriguingly, it often did so by adding parentheticals to any statement that otherwise might have been interpreted as applying solely to women at the exclusion of other “persons with gestational capacity,” as the following excerpt demonstrates: “The woman’s right to decide (and whose exercise of that right extends, of course, to all persons with gestational capacity) is the result of a particular combination of different rights and principles . . . .”[118] And when the Court later explicated the various “rights and principles” at issue, it never missed an opportunity to recognize the gender-diverse range of individuals implicated in its reasoning:

Human dignity. “Human dignity recognizes the specificity of these unique conditions and is based on the central idea that women and people with the capacity to gestate can freely dispose of their bodies.”[119]

Autonomy and free development of one’s personality. “The right to decide serves as an instrument to exercise the free development of one’s personality, personal autonomy and the protection of privacy, in a way that allows the woman or the person with the capacity to gestate, to choose who she/he wants to be . . . .”[120]

Legal equality. “Gender equality privileges the female capacity (and those corresponding to any other gender identity) to make responsible decisions about their life plan and bodily integrity.”[121]

Right to (psychological and physical) health and reproductive freedom. The health of women and of people with the capacity to gestate, as an essential link to be able to choose whether to continue or annul the gestation process, must be assessed as the right to maintain an optimal psycho-emotional state.[122]

The impact of the Mexican Supreme Court’s gender-inclusive language was felt swiftly. When the time came to rely on the Coahuila and Sinaloa precedents in challenging other states’ abortion restrictions,[123] one of the first groups to do so was a collective of twelve transgender men in the state of Chihuahua.[124] The transgender plaintiffs presented two collective amparos before a federal court demanding the complete decriminalization of abortion in Chihuahua and the provision of “free and safe” voluntary abortion services for all persons with a capacity for pregnancy in the state.[125] These amparos were the first lawsuits in the nation to demand the provision of inclusive abortion services for transgender and other gender-diverse persons, a key milestone that Érick Márquez—a representative of the Trans Solidarity Network of Ciudad Juárez—said “is important . . . because we [often] leave out many populations that we do not see in our immediate reality” but who nonetheless have reproductive capacities.[126] Of course, there is no way of knowing whether this transgender collective would have brought their historic amparos in the absence of the gender-inclusive language found in the Mexican Supreme Court’s abortion rulings, but it seems (1) highly likely that they would have felt less empowered to do so and (2) almost certain that their legal cases would have been undermined by technical, formalistic arguments that abortion protections applied only to “women” rather than transgender men.[127]

2. Abortion Decriminalization Nationwide

Similar to the amparos pursued by the transgender collective in Chihuahua, the months following the 2021 Coahuila and Sinaloa rulings were marked by groups like GIRE, TERFU, Cultivando género, Cecadec, and other NGOs going state by state presenting lawsuits that sought to eliminate the crime of abortion from various penal codes. Some of these amparos were successful—for instance, on August 30, 2023, Aguascalientes became the twelfth of Mexico’s thirty-two states to decriminalize abortion[128]—but the process was slow. On September 6th, 2023, abortion-rights advocates in Mexico realized a more sweeping victory when the Supreme Court struck down the portion of Mexico’s federal penal code that criminalized abortion.[129] This ruling did not compel decriminalization in the twenty Mexican states that had yet to revise their local penal codes, but it was nonetheless viewed as a nationwide expansion of abortion access because it created an across-the-board landscape in which even women in hold-out states could now legally seek abortions in federal hospitals and clinics.[130] The ruling also prohibited employees at federal facilities from being penalized for performing abortions.[131]

The Mexican Supreme Court’s 2023 ruling was not only an expansion of its 2021 decisions; it was also an extension of the gender-inclusive abortion-rights rhetoric in those opinions. The Court’s holding was unequivocal: “The legal system that regulates the crime of abortion in the federal criminal code is unconstitutional because it is contrary to the right to decide of women and people with the capacity to gestate.”[132] The Court used equally gender-inclusive language when posting on X (formerly Twitter): “The First Chamber of #LaCorte resolved that the legal system that criminalizes abortion in the Federal Penal Code is unconstitutional, since it violates the human rights of women and people with the capacity to gestate.”[133]

As in the Coahuila decision that formed the basis for this latest edict, the Court rooted its rationale in “the right[] to human dignity, [the right to] reproductive autonomy and free development of personality, the right to health[,] and the right to equality and non-discrimination.”[134] In one portion of the opinion, for instance, the Court noted:

[H]uman dignity . . . is based on the central idea that women and people with the capacity to bear children can freely take command of their bodies and can build their identity and destiny autonomously, free of impositions or transgressions, since it starts from recognizing the elements that define them and the exercise of the minimum freedoms for the development of their life to the fullest.[135]

Remarkably, the Court used the phrases “women and persons with a capacity for pregnancy” or “women and persons with a capacity to conceive” no less than eighty-seven times in total.

3. Historical Parallels with Argentina

In its 2021 Coahuila case, the Mexican Supreme Court was unequivocal in citing Argentina’s VIPL as the source from which it was deriving its gender-inclusive abortion-rights rhetoric:

In the field of comparative law, recently the use of such [gender-inclusive] expressions (specifically the use of “pregnant person” to refer to all people who are capable of undergoing this biological process) stands out in Argentina’s Law of Voluntary Interruption of Pregnancy, passed by the National Congress of that country on December 30, 2020.[136]

It was perhaps no surprise that the Mexican Supreme Court’s abortion rulings would reference Argentina’s similarly pioneering Voluntary Interruption of Pregnancy Law, considering the shared influences and inextricable origin stories. As in Argentina, the abortion-rights victories achieved in Mexico were largely driven by the advocacy efforts of the “Green Wave.”[137] Moreover, as in Argentina, the gender-inclusive language in Mexico’s Supreme Court opinions partly reflected how the Green Wave’s transverse structure allowed the needs and demands of gender-diverse persons to be highlighted alongside more conventional voices.[138] Many who saw what happened in Argentina demanded that Mexico go further by not only referencing “pregnant persons”[139] but also specifying who was included in that group—”for example, transgender men, non-binary people, among others.”[140] The Court did not disappoint.

C. Colombia

1. Sentencia C-055-22: A Momentous Ruling by the Constitutional Court

Colombia was last but certainly not least among the three Green Wave countries that legalized abortion between 2020 and 2022.[141] On February 21, 2022, Colombia’s Constitutional Court issued a narrow 5-4 ruling decriminalizing the procedure before the twenty-fourth week of pregnancy.[142] Previously, under the precedent set by a 2006 Constitutional Court ruling, abortions had only been permitted under three circumstances: (1) when the pregnancy was a result of rape or incest, (2) when the fetus was deformed, or (3) when the woman’s life was threatened. In its latest decision, the Constitutional Court expanded abortion access by offering abortions on request before the twenty-four-week gestational limit and recognizing the legality of abortions after twenty-four weeks only under the three limited circumstances originally articulated in 2006.[143] The expansion was forecast to have overwhelmingly positive implications for hundreds of Colombian residents who previously would have been subject to criminal action.[144]

The Court’s February 2022 decision was the culmination of a lawsuit filed in September 2020 by Causa Justa, an advocacy group comprising more than 200 organizations and activists.[145] Causa Justa had argued that the criminalization of abortion discriminates against women and girls by unduly restricting their right to health and reproductive care. The Constitutional Court not only agreed with this fundamental proposition, but it went a step further in its final opinion by adding a third category of aggrieved persons: “women, girls, and pregnant persons.”[146]

2. A Familiar Origin Story

The origin story behind the Colombian Court’s gender-inclusive language is a familiar one. Not only were “women and girls” front and center in the Green Wave abortion-rights movement that spread through Colombia, but transgender and other gender-diverse persons were as well[147]—and these were precisely the persons whom the Constitutional Court had in mind when broadly alluding to “pregnant persons.”[148] The efforts of the Alianza Trans Abortera de Colombia (ATAC)—also known as the Trans Male Abortion Alliance of Colombia—were particularly instrumental in this victory, as they recognized that the fight for abortion-rights in Colombia could and should be linked to the struggle for transgender visibility. For instance, together with Profamilia, ATAC conducted the first-ever comprehensive study on access to abortion for transgender men and non-binary persons in Colombia.[149] The staggering findings from this report revealed widespread barriers that largely stemmed from both the social and legal exclusion of gender-diverse persons in Colombia.[150]

As visibility and awareness-raising efforts by the ATAC empowered gender-diverse persons to come forward with tales of their unique barriers to abortion care, several anecdotes reached a concerning consensus—the language of Colombia’s abortion law under its 2006 ruling on the subject was facilitating bigotry, discrimination, and harm. As explained by one transgender advocate:

In 2006, the Constitutional Court of Colombia ruled, in judgment C-355, that abortion is not a crime in three cases, [including] when the continuation of the pregnancy constitutes a danger to the life or health of the woman, . . . [b]ut the Court forgot something: the rest of the pregnant people. We, the masculine and non-binary trans people, were not named in the sentence and were left in a certain limbo, or legal vacuum.[151]

Others echoed these sentiments, noting that the “legal vacuum” left by the 2006 ruling was encouraging overly literal, deliberately narrow readings of the law that denied gender-diverse persons access to abortion even in those instances when “women” otherwise would have qualified.

Hence, when it came time for the Colombian Constitutional Court to issue an opinion in the 2022 Causa Justa case, there was a hope that it would learn from the mistakes of its 2006 ruling—as well as the examples set by Argentina and Mexico—by including unambiguous gender-inclusive language in its reasoning. Like the Mexican Supreme Court, it did not disappoint.

D. The United States

1. Supreme Court Rulings

a. Dobbs v. Jackson Women’s Health Organization

On June 24, 2022, the U.S. Supreme Court issued its landmark decision in Dobbs v. Jackson Women’s Health Organization.[152] At issue in the case was Mississippi’s 2018 Gestational Age Act, which generally prohibited abortion of fetuses with a gestational age of more than fifteen weeks.[153] The Center for Reproductive Rights had initially brought suit in federal district court on behalf of Jackson Women’s Health Organization—the last remaining abortion clinic in Mississippi—citing cases like Roe[154] and Casey[155] in arguing that “the 15 week ban unconstitutionally deprive[d] women of the right to an abortion before viability.”[156] The district court granted summary judgment in Jackson Women’s Health Organization’s favor,[157] the United States Court of Appeals for the Fifth Circuit affirmed,[158] and the Supreme Court granted certiorari to address one central question: “[w]hether ‘all pre-viability prohibitions on elective abortions are unconstitutional.’”[159]

In a 6-3 ruling, the Supreme Court sided with Mississippi and twenty-five other states who had argued that state abortion restrictions like the fifteen-week ban imposed by the Gestational Age Act were permissible. In so doing, the Court accepted Mississippi’s invitation to overturn Roe v. Wade and Planned Parenthood v. Casey, effectively eliminating a federal constitutional right to abortion.[160] Writing for the majority, Justice Samuel Alito asserted that “Roe was egregiously wrong from the start” and that “far from bringing about a national settlement of the abortion issue, Roe and Casey have enflamed debate and deepened division.”[161] As such, Justice Alito was unequivocal about what the Court’s majority deemed to be the proper resolution in this case:

We hold that Roe and Casey must be overruled. The Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment. . . . It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.[162]

The decision in Dobbs produced three concurring opinions and a blistering dissent. Chief Justice Roberts, who concurred in the judgement but disapproved of the majority’s reasoning, would have taken “a more measured course” by upholding the Mississippi Gestational Age Act and permitting fifteen-week gestational limits while nevertheless refraining from overturning Roe and Casey altogether.[163] Unlike Chief Justice Roberts, Justice Kavanaugh signed on to the full majority opinion, but he still wrote separately to clearly express his “additional views about why Roe was wrongly decided, why Roe should be overruled at this time, and the future implications of [this] decision.”[164] Similarly, Justice Thomas agreed with the majority opinion’s decision to overturn Roe but wrote separately to clarify his views, emphasizing that he believed the Court “in future cases . . . should reconsider all of [its] substantive due process precedents, including Griswold, Lawrence, and Obergefell”[165]—a proposition that sparked immediate controversy and consternation nationwide.[166] Justices Breyer, Sotomayor, and Kagan, in a rare jointly authored dissenting opinion, were unambiguous regarding their reasons for fiercely eschewing the other Justices’ opinions:

[The Court today] eliminates a 50-year-old constitutional right that safeguards women’s freedom and equal station. It breaches a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it places in jeopardy other rights, from contraception to same-sex intimacy and marriage. And finally, it undermines the Court’s legitimacy. . . . In overruling Roe and Casey, this Court betrays its guiding principles.[167]

Perhaps none of the above was surprising. After all, an initial draft majority opinion by Justice Alito had been leaked by the political news outlet POLITICO in May 2022, and there were few changes between that draft and the final majority opinion released in June.[168] As for the other opinions, research confirms that, as the Court has grown more ideological and polarized, it has become easier to predict how each individual Justice would rule on hot-button issues, such that the 6-3 conservative-liberal split in Dobbs was arguably a foregone conclusion.[169]

Here’s an observation that is surprising, at least in light of the foregoing rhetorical trends evinced in Argentina, Mexico, and Colombia[170]: in this monumental 213-page decision that was widely considered “one of the most consequential cases before the [C]ourt in the last five decades”[171]—not only for women, but for all persons with a capacity for pregnancy and a need for reproductive care[172]—not a single reference was made to any group other than women. Even several of the Dobbs amicus briefs that centered their discussion on “women’s rights” were cognizant and considerate enough to at least include a footnote acknowledging the gender-diverse array of persons affected by the case.[173] In fact, one amicus brief earnestly beseeched the Court to update its abortion-rights language in hopes that the nation’s laws, policies, and jurisprudence might soon reflect the lived realities of the many gender-diverse persons in need of abortion care.[174] Another amicus brief, filed by an agglomeration of LGBTQ organizations, offered statistics demonstrating why abortion access is of critical importance for transgender and other gender-diverse persons.[175]

When the decision came down by the Supreme Court, these persons were—depending on your interpretation of the matter—either presumed to be subsumed within the Court’s discussion of women or simply elided from consideration altogether. Neither explanation for the oversight is particularly consoling for a population whose existence, autonomy, and self-determination have been undermined time and time again.

b. Other Notable Cases

Dobbs was not the first abortion-rights case in which the Court neglected—or perhaps refused—to use the sort of gender-inclusive language that has become commonplace in the law and policy of the Latin American “Green Wave” nations. Indeed, it was not even the first case of the 2020s.

In June Medical Services LLC v. Russo, the Court examined a challenge to a Louisiana law, the Louisiana Unsafe Abortion Protection Act (Act 620), which required physicians who perform abortions in the state to have “active admitting privileges” at a hospital within thirty miles of the facility where the doctor provides abortions.[176] The Court, in a majority opinion authored by Justice Stephen Breyer, held that the admitting privileges requirement imposed an undue burden on a woman’s constitutional right to choose to have an abortion.[177]

In justifying its ruling in June Medical, the majority relied heavily on the recent precedent of Whole Woman’s Health v. Hellerstedt.[178] In that case, the Court invalidated a Texas admitting-privileges law that was almost word-for-word identical to Louisiana’s Act 620.[179] Notably, however, June Medical and Whole Woman’s Health’s similarity was not limited to the nearly identical language of the underlying statutes at issue; they were also similar in the language of the majority opinions themselves—both authored by a liberal justice, unlike Dobbs—which excluded any mention of the fact that cisgender women were not the only group implicated in the Court’s decision.[180]

Although the omission of transgender persons from the Court’s opinions in Whole Woman’s Health could perhaps be attributed to the Justice’s unfamiliarity with transgender issues and rhetoric at the time,[181] there are two major reasons why this explanation is unpersuasive in the case of June Medical. First, as in Dobbs, several amici in June Medical alerted the Court to the reproductive capacity and abortion-related needs of persons who are not cisgender women, including the same Reproductive Justice Scholars group that submitted a humble entreaty for gender-inclusive language in Dobbs.[182] Second, the Court’s ruling in June Medical came just two weeks after its decision in Bostock v. Clayton County—the landmark case in which the Court held that an employer violates Title VII by firing an individual for being homosexual or being a transgender person.[183] The latter observation in particular suggests that the phenomenon at issue in this Section is not necessarily an across-the-board elision of transgender persons in the Court’s jurisprudence but, rather, a more specific—though still troubling—form of transgender invisibility that pervades the contexts of pregnancy and abortion.

2. Legislative Actions

In the wake of the Supreme Court’s decision to overturn Roe and Casey, the U.S. Congress considered three major proposals to enshrine a right to abortion into federal law by way of legislative action rather than judicial mandate.[184] Although all three efforts failed, they remain instructive for purposes of studying the safeguards that they sought to establish and the language that they used. Ultimately, this Section tells a tale of Congress becoming increasingly more moderate in its drafting, gradually moving from gender-inclusive to gender-neutral and, finally, to trans-exclusionary language. Because all three federal measures failed, the Supreme Court’s edict that “the authority to regulate abortion must be returned to the people and their elected representatives”[185] has thus far seen the greatest legislative action at the state level, where fourteen states have passed near-total bans and at least eleven others were considered likely to impose similar restrictions as of April 2023.[186] The lesson from the three Latin American “Green Wave” nations—particularly Argentina, where abortion access was expanded through legislation—is not only that the United States Congress would do well to reenter the fray and restore more uniform federal safeguards for abortion, but also that, in doing so, it should opt for the more protective, gender-inclusive language evinced in its initial proposal.

a. Women’s Health Protection Act

The first, and most expansive, abortion-rights legislation considered by Congress in recent years was the Women’s Health Protection Act (WHPA).[187] The WHPA sought to create a statutory right for health care providers to provide abortion care, and a right for their patients to receive that care, free from medically unnecessary restrictions that single out abortion and impede access. For instance, under the WHPA, governments “may not limit a provider’s ability to prescribe certain drugs, offer abortion services via telemedicine, or immediately provide abortion services when the provider determines a delay risks the patient’s health.”[188] Similarly, governments may not require a provider to “perform unnecessary medical procedures, provide medically inaccurate information, comply with credentialing or other conditions that do not apply to providers whose services are medically comparable to abortions, or carry out all services connected to an abortion.”[189] In addition, governments “may not (1) require patients to make medically unnecessary in-person visits before receiving abortion services or disclose their reasons for obtaining such services, or (2) prohibit abortion services before fetal viability or after fetal viability when a provider determines the pregnancy risks the patient’s life or health.”[190]

Congress has considered some version of the WHPA every year since its initial appearance in 2021. The Women’s Health Protection Act of 2021[191] was spurred by the Texas Heartbeat Act (SB 8),[192] the Women’s Health Protection Act of 2022[193] was introduced in swift response to the Supreme Court’s opinion in Dobbs,[194] and the Women’s Health Protection Act of 2023[195] was elicited by the wave of state bans on abortion that arose in the months following Dobbs[196]. The text of the WHPA was largely preserved from the 2021 version to the 2022 version, and both versions were passed by the House of Representatives after being sponsored by Democratic Representative Judy Chu of California. In both instances, however, the WHPA failed to advance in the Senate after falling short of the sixty votes needed to overcome the filibuster. Unlike its predecessors, the Women’s Health Protection Act of 2023 originated in the Senate—not the House—with modest alterations designed to appease past opponents of the Act,[197] but its text nonetheless maintained elements worthy of analysis here.

The 2021 and 2022 iterations of the Women’s Health Protection Act are notable for containing the most progressive, gender-inclusive language of any abortion-rights legislation considered by Congress in the past three years. Consider the following assertion from the Findings and Purpose sections of both bills:

The terms “woman” and “women” are used in this bill to reflect the identity of the majority of people targeted and affected by restrictions on abortion services, and to address squarely the targeted restrictions on abortion, which are rooted in misogyny. However, access to abortion services is critical to the health of every person capable of becoming pregnant. This Act is intended to protect all people with the capacity for pregnancy—cisgender women, transgender men, non-binary individuals, those who identify with a different gender, and others—who are unjustly harmed by restrictions on abortion services.[198]

This was consistent with the WHPA’s intentionally broad opening description as an Act “to protect a person’s ability to determine whether to continue or end a pregnancy,” and not simply a woman’s ability to do so.[199]

For a brief period, the WHPA of 2021 and 2022 offered advocates of gender-inclusive abortion-rights rhetoric hope that the United States was on a similar path as the “Green Wave” nations. Note the similarities between the foregoing WHPA excerpts and the Argentinian Voluntary Interruption of Pregnancy Law’s purpose of “regulat[ing] access to voluntary termination of pregnancy and post-abortion care . . . [for] women and people with other gender identities with the ability to gestate,” or the Mexican Supreme Court’s assertion that “the spectrum of this Court’s decision includes both women and people with the capacity to gestate . . . (for example, transgender men, non-binary people, among others).” The parallels were strikingly clear.

The Women’s Health Protection Act of 2023, however, was less ambitious than its predecessors. Perhaps in an attempt to win the votes of those who previously opposed the WHPA,[200] the 2023 iteration of the Act excluded the prior versions’ gender-inclusive language and opted for more modest, gender-neutral language. For instance, gone was the previous “Findings and Purpose” statement that “[t]his Act is intended to protect all people with the capacity for pregnancy,” and ditto for all mentions of the various gender identities implicated by the law. To be sure, the bill still described itself broadly as “protect[ing] a person’s ability to determine whether to continue or end a pregnancy” and listed among its purposes “permit[ting] people to seek and obtain abortion services”[201]—language that many advocates prefer over exclusive references to “women,” as it at least tacitly acknowledges the existence of gender-diverse persons with a capacity for pregnancy—but it was certainly a step back from the more progressive 2021 and 2022 WHPA’s explicit mention of transgender and nonbinary persons.

b. Ensuring Women’s Right to Reproductive Freedom Act

The U.S. House of Representatives passed the Ensuring Women’s Right to Reproductive Freedom Act (EWRRFA)—originally introduced as the Ensuring Access to Abortion Act of 2022—on the same day as the Women’s Health Protection Act of 2022.[202] Though the bill later failed to pass the Senate, it was intended to “prohibit[] anyone acting under state law from interfering with a person’s ability to access out-of-state abortion services.”[203] Specifically, the bill would have prohibited a wide array of actions “prevent[ing], restrict[ing], imped[ing], or retaliat[ing] against” health care providers, persons, or entities engaged in the pursuit or provision of out-of-state abortions.[204] In many ways, the EWRRFA was a complement to the WHPA of 2022.

Nevertheless, rather than the unabashedly gender-inclusive language included in the WHPA of 2022, the text of the EWRRFA more closely approximated the gender-neutral language seen in the WHPA of 2023. For instance, the text refrained from any explicit mention of transgender persons and similar “people with the capacity for pregnancy.” At the same time, however, aside from the Act’s name, neither did it contain any explicit mention of “women.” Instead, the text broadly protected “any person’s ability to travel across a State line for the purpose of obtaining an abortion service that is lawful in the State in which the service is to be provided,” and “any person’s or entity’s ability to assist another person traveling across a State line for the purpose of obtaining an abortion service that is lawful in the State in which the service is to be provided.”[205] In this regard, the EWRRFA was not the most expansive bill rhetorically, but it at least avoided the singular, exclusive focus on “women” that advocates warn could potentially be used to restrict services for transgender men and nonbinary persons, as was the case in Colombia prior to its Constitutional Court expanding abortion in gender-inclusive terms.[206]

c. Reproductive Freedom for All Act

In August 2022, a bipartisan group of Senators introduced the Reproductive Freedom for All Act (RFAA) in an attempt to create a middle ground between Republicans and Democrats.[207] The bill sought to codify the holdings of Roe and Casey by preventing state action that would impose an “undue burden” on pre-viability abortions.[208] The bill also included protections for access to contraception with the intention of “provid[ing] statutory authority for the Court’s holdings in Griswold v. Connecticut [the right of married couples to obtain contraception], Eisenstadt v. Baird [the right of single persons to obtain contraception], [and] Carey v. Population Services International [the right of minors to obtain contraception].”[209] The 2022 version of the RFAA failed to gain traction, but the initial co-authors reintroduced the bill in February 2023[210] following President Joe Biden’s State of the Union Address, in which he urged Congress to pass legislation that guaranteed access to abortion.[211]

The rhetoric in both the 2022 and 2023 versions of the RFAA was scattered, at least from the perspective of gender-inclusive language advocates. The Act starts promisingly, noting broadly its intentions “to guarantee that Americans have the freedom to make certain reproductive decisions without undue government interference,”[212] and it doubles down by later declaring that “all persons shall have the right to make certain reproductive decisions without undue government interference, consistent with the provisions of this Act.”[213] In many other critical sections, however, the Act abandons its neutral rhetoric for the sort of trans-exclusionary, “women”-centric language that some advocates distrust:

A State . . . shall not impose an undue burden on the ability of a woman to choose whether or not to terminate a pregnancy before fetal viability; . . . [but a State] may enact reasonable regulations to further the health or safety of a woman seeking to terminate a pregnancy, unless such regulations impose an undue burden . . . [in the sense that] the purpose or effect of such law is to place a substantial obstacle in the path of a woman seeking to terminate a pregnancy before fetal viability.[214]

3. Executive Orders

Two weeks following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, President Joe Biden signed Executive Order 14076, “Protecting Access to Reproductive Healthcare Services.”[215] Therein, the President directs the U.S. Department of Health and Human Services and several other administrative entities to take a series of actions restoring the rights either abrogated or threatened by Dobbs. Specifically, the Executive Order includes directives to (1) safeguard access to reproductive health care services, including abortion and contraception; (2) protect the privacy of patients and their access to accurate information; (3) promote the safety and security of patients, providers, and clinics; and (4) coordinate the implementation of federal efforts to protect reproductive health and access to health care.[216]

The rhetoric of Executive Order 14076 is neither gender-inclusive nor gender-neutral. Framed in terms of the Congressional proposals examined earlier, it neither makes explicit reference to “all people with the capacity for pregnancy—cisgender women, transgender men, non-binary individuals, those who identify with a different gender, and others—” in the spirit of the Women’s Health Protection Act of 2022,[217] nor does it tacitly incorporate such gender-diverse persons under broad aims of “protect[ing] a person’s [right to choose]” in the spirit of the Women’s Health Protection Act of 2023.[218] To the contrary, EO 14076 is riddled with the sort of traditional, “women”-centric language that renders transgender, nonbinary, and other gender-diverse persons invisible in the eyes of the law:

[T]oday, fundamental rights—to privacy, autonomy, freedom, and equality—have been denied to millions of women across the country . . . It remains the policy of my Administration to support women’s right to choose and to protect and defend reproductive rights.[219]

Despite evidence that the Biden Administration clearly recognizes and protects the interests of transgender and other gender-diverse persons in some contexts, his recent Executive Orders demonstrate a repeated failure to recognize them in the abortion-rights context. Some might argue that this rhetorical omission holds less significance for the Executive than for the Supreme Court or for Congress, as gender-diverse persons could likely still rely on the Biden Administration to enforce their rights in practice even if they are absent from EOs 14706 and 14709 in rhetoric. This, however, discounts the fact that legal textual invisibility is still an injustice and disservice that raises concerns for various reasons covered in Part III of this Note. Argentina, Mexico, and Colombia realized this and took appropriate action by using some of the most gender-inclusive language possible when they expanded abortion access in recent years. In contrast, the United States—in rhetoric as in substance—has lagged behind.

E. Can This Rhetorical Divergence Be Explained? A Brief Sociopolitical Analysis

Social-science theories of change relevant to advocacy and policy-change efforts can generally be grouped into two major categories: (1) global theories, which explain observed changes in terms of the structural, systemic, sociopolitical, and historical conditions in which they occur; and (2) tactical theories, which focus on the specific advocacy strategies employed on the ground.[220] Because the Green Wave’s grassroots-activism tactics have already been extensively analyzed elsewhere[221] and briefly illustrated in Sections II.A., II.B., and II.C. of this Note, this Section focuses on explaining the Green Wave’s rhetorical progressivism and the United States’ relative inertia in terms of two global, sociopolitical differences between the countries. First, it discusses the nations’ historical contexts and varying receptivity to “debt-of-democracy” claims. Second, it analyzes the judicial philosophies surrounding the institutional roles of their highest courts. To maximize the impact of their activism tactics, it is integral that U.S. organizers keep these features in mind and adapt accordingly when mobilizing in favor of the same substantively and rhetorically expansive vision of abortion rights that was secured in the Green Wave nations.

1. Historical Context and Modern Receptivity to “Debt-of-Democracy” Claims

Latin America’s history of political instability, civil wars, and military dictatorships in the 20th century, followed by democratization processes, has deeply influenced social movements like the Green Wave.[222] One of the most notable developments has been “the notion of democracy as fundamentally defined by its protection of human rights,”[223] which has produced a political environment where framing human-rights issues as “debts of democracy” is considered remarkably persuasive. Indeed, several commentors have remarked that activists in Latin America “faced a more conducive context for their demands after the transition to democracy,”[224] so long as they were effectively presented in terms that echoed an expectation that democracy would guarantee protection of human rights after years of brutal dictatorship.[225]

Although this “debt-of-democracy” framework has become a “master frame” in Latin American social movements,[226] it has been especially effective in fueling successes within the LGBTQ+ and abortion-rights contexts. For instance, Columbia Law School Lecturer Kelsey M. Jost-Creegan notes that “[w]hen advocating for anti-discrimination provisions in the Buenos Aires constitution, LGBT activists adopted the human rights frame and forced legislators to take a public stand because they ‘believed that it would be very difficult for these individuals to oppose publicly their demand given the saliency of human rights in post transitional Argentina.’”[227] Similarly, in the realm of abortion rights, not only has the National Campaign for the Right to Legal, Safe, and Free Abortion asserted that the legalization of abortion is a “debt of democracy,”[228] but abortion-rights activists for decades have been drawing contrasts between the democratic present and the undesirable, authoritarian past as powerful tools to delegitimize influential opposition forces like the Catholic Church. For instance, at the 1993 National Women’s Meeting,[229] activists criticized “[t]he doublespeak of the church that claims to defend life but forgets the ecclesiastic hierarchy’s complicity during the military dictatorship, when it silenced the torture and death of pregnant women in captivity.”[230]

This receptivity to “debt-of-democracy” human-rights arguments partially explains the legislative success of the Green Wave in Argentina. At the time that the Campaign started calling the legalization of abortion a “debt of democracy,” and at the point that gender-diverse activists began playing a more vocal role in establishing their place within the Campaign, many individuals in Argentina would have drawn associations with seemingly related, fairly recent LGBTQ+ movements that adopted similar “debt of democracy” language. In other words, they would have viewed abortion legalization and the recognition of LGBTQ+ persons through gender-inclusive language as part of a larger, inextricable, post-transitional debt—a connection that the Campaign made fairly clear by building a transversal, trans-friendly movement and by incorporating gender-inclusive language in its model legislation.

The Green Wave nations’ sensitivity to “debt-of-democracy” claims also partially explains the success of the judicial movements in Colombia and Mexico. Consistent with their emphasis on addressing outstanding “debts of democracy,” both of these nations have incorporated international human-rights treaties into their constitutions or given them constitutional status, making courts more receptive to human-rights arguments.[231] For instance, after the Inter-American Court of Human Rights advised governments to establish efficient and inexpensive legal gender-recognition procedures, Colombia’s Constitutional Court cited to the IACHR’s advisory opinion when issuing a landmark ruling that recognized a non-binary gender marker and emphasized the need to protect gender-diverse identities against discrimination.[232] Similarly, recall that the Mexican Supreme Court’s landmark abortion rulings were centered on “the right[] to human dignity, [the right to] reproductive autonomy and free development of personality, the right to health[,] and the right to equality and non-discrimination,” often making direct references to international human rights rules and decisions.[233]

In contrast, the U.S. Supreme Court’s approach to constitutional interpretation—especially in the realm of abortion, which has traditionally been rooted in individual rights and privacy—differs significantly from the human-rights and social-justice frameworks adopted by the courts in Mexico and Colombia. [234] What mattered to the majority in Dobbs was whether abortion was “deeply rooted in this Nation’s history and tradition,”[235] not whether it was mandated by international human-rights obligations or broader notions of what it means to safeguard fundamental democratic ideals. Notably, in the wake of Dobbs, legal scholars have begun calling for an increased role of human rights in U.S. legal advocacy and constitutional interpretation.[236] In a similar vein, several amicus briefs featured human-rights arguments and appeals to international treaties as part of the litigation surrounding Dobbs.[237] Injecting more explicit “debt-of-democracy”-style human-rights arguments into the U.S. legislative and judicial debate on abortion rights and transgender visibility might be valuable, though it is important to acknowledge that the underlying structural features that made the Green Wave nations more receptive to these arguments—fairly recent, politically fraught transitions to democracy, particularly in Argentina and Colombia—are absent from the U.S. context.

2. Judicial Philosophies Regarding the Institutional Roles of the Courts

The second explanation explored in this Note for the presence of gender-inclusive abortion-rights rhetoric in the Green Wave countries focuses on these nations’ distinct philosophies regarding the institutional roles of their high courts. Courts in both Mexico and Colombia, where abortion access was expanded by judicial mandate, have been more activist than the U.S. Supreme Court when adjudicating issues of human rights and fundamental liberties.[238] This judicial activism has been especially prevalent in the realms of public health generally and sexual or reproductive health specifically.[239] For instance, landmark cases that have gained international attention for placing Mexico at the forefront of sexual and reproductive rights in recent years—beyond its nationwide decriminalization of abortion—include the legalization of gay marriage and adoption[240] and the recognition of a fundamental right of transgender individuals to change their officially recognized sex on public documents.[241] Similarly, Colombia’s Constitutional Court has drawn in equal parts ire[242] and approval[243] for its increasingly expansive activism toward claims rooted in “the right to health” and related liberties. In both nations, this jurisprudential evolution seems to reflect a shift away from a belief that courts should play “traditional court-of-law” roles—with weak sociopolitical influence and marginal participation in controversial issues—and a gradual acceptance of “the institutional conception that it is the judiciary’s role to help fulfill the promises of the constitutional text.”[244]

The Mexican Supreme Court and Colombian Constitutional Court’s tendencies to prioritize overarching, at times penumbral, principles like “the fundamental right to health,” “the right to free development of one’s personality,” “and the right to human dignity” reveal a special predisposition toward gender-inclusive abortion-rights rhetoric. Recall from earlier sections that public-health and “debt-of-democracy” human-rights or human-dignity arguments were featured prominently in the advocacy strategies of Mexican and Colombian activists. The Courts in these nations would have found claims presented in these terms especially compelling, and they would have been more inclined than other high courts to draw on their vast repertoire of fundamental rights when adjudicating them, even if it meant venturing into socially or politically contested waters. The result was a judicially endorsed, rhetorically progressive vision of abortion access that guaranteed not only the rights to health of all parties affected—“women and people with the capacity to gestate”[245]—but also, in a more abstract sense, the “right to exist” that transgender activists have frequently associated with legal visibility.[246]

III. Why This Matters

A. Law’s Expressive and Educative Functions: Legal Recognition as a Means of Countering Stigma, Discrimination, and Harm

Gender-inclusive abortion-rights rhetoric matters because legal recognition can play an important role in countering stigma, discrimination, and harm. Various scholars have written about the law’s expressive power for LGBTQ+ persons, meaning its ability to make statements about values as well as to encourage or deter actual behavior.[247] The idea emerges from the work of Cass Sunstein, who has argued that laws can “be designed to change social norms,” particularly where “good norms” are lacking independently of the law—such as, in Sunstein’s example, community norms regarding littering, or in the case of this Note, bad social norms that encourage the mistreatment of transgender persons.[248] Related are the ideas of Christopher Eisgruber and other scholars who have noted the “educative” function of the law—and especially of the Supreme Court—in “offering ad hominem lessons capable of inspiring Americans to honor their values.”[249] This is consistent with social-science literature documenting the “legitimation” power of the Supreme Court, whereby its pronouncements on controversial issues can slowly shape public opinion in favor of certain values and ideologies.[250] Collectively, these works suggest that “the law might be enlisted as a corrective” to “reconstruct existing norms and to change the social meaning of actions through a legal expression or statement about appropriate behavior.”[251]

The stakes of these norm-changing and behavior-shaping functions are high for transgender and other gender-diverse persons. A recent wave of scholarship has been devoted to examining how the institutional erasure of transgender pregnant persons fuels strongly gendered norms around pregnancy that create significant challenges for this population.[252] According to these studies, current cultural and structural features of our society perpetuate anti-transgender stigma, animate transphobia and violence, and facilitate institutional structures that do not recognize the possibility of transgender men becoming pregnant.[253] These issues present severe impediments to gender-diverse persons’ ability to navigate the healthcare system,[254] which exacerbates the wide array of health inequities that they already experience at disproportionate rates relative to their cisgender peers.[255]

A vast array of literature has also begun demonstrating the ways in which changing our current discourse and behaviors—beginning with raising awareness of gender-diverse pregnancies—can counter the norms that negatively shape people’s responses to pregnant men. The consensus is that support and affirmation of transgender people is associated with positive health outcomes.[256] For instance, a 2021 survey of transgender youth reported that youth who had access to social support and gender affirmation—including use of gender-affirming pronouns and clothing and access to legal name and gender changes—were significantly less likely to attempt suicide.[257]

Put simply, visibility and affirmation are important, especially in the highly stigmatized or otherwise underrecognized realm of transgender pregnancy. In contrast with increasing social, political, and clinical visibility, the observations in Section II.D. of this Note suggest that gender-diverse pregnant persons remain largely invisible across some of the United States’ most notable judicial, legislative, and executive statements on abortion rights. This is a missed opportunity. Scholars like Sunstein and Eisgruber have demonstrated that changes in the law can serve norm-setting (expressive) and informational (educative) functions similar to those associated with the foregoing changes in U.S. social, political, and clinical discourse. It is time to harness those powerful expressive and educative functions by adopting more gender-inclusive abortion-rights rhetoric in the spirit of Argentina, Mexico, and Colombia.

B. Legal Implications of Exclusion

The second reason gender-inclusive abortion-rights rhetoric matters is because language that excludes transgender and other gender-diverse persons has serious legal implications.

1. Denial of Benefits

Various legal scholars and practitioners have noted how gender-exclusive language encourages narrow interpretations of the law and the subsequent denial of legal benefits. For instance, ACLU Staff Attorney Chase Strangio has described how a 2015 New York State law that regulated access to hysterectomies on sexed terms presented significant barriers for transgender Medicaid recipients in the state.[258] Under that iteration of New York’s Medicaid scheme, hysterectomies were not covered where the sole purpose of the procedure was to prevent further pregnancies, but they were available and reimbursable under certain conditions where “the woman was sterile before the hysterectomy was performed.”[259] The issue, of course, was that the coding of a recipient’s sex as male would expose that person to a high risk of being denied access to coverage for hysterectomies. To be sure, the language of the law did not explicitly preclude coverage for persons not classified as women, but Strangio reported that many practitioners had observed a pattern of overly literal statutory interpretations leading to coverage denial for gender-diverse persons—not only for hysterectomies, but also for gynecological exams, obstetric exams, and mammograms.[260]

Similar coverage denials have also been analyzed in the context of federal laws and private insurance. Paradigmatic examples of federal laws that have been criticized on these grounds, as highlighted by scholars like David Fontana and Naomi Schoenbaum,[261] include (1) the Family and Medical Leave Act, which mentions only “expectant mothers” in its protections for prenatal leave;[262] (2) the Pregnancy Discrimination Act, which amended Title VII to protect against pregnancy discrimination but by its own terms covered only “women”;[263] and (3) the Patient Protection and Affordable Care Act, which contained several regulations that exclusively mentioned “pregnant women” when mandating that covered employers offer insurance plans with various pregnancy-related benefits.[264] Anecdotal evidence from transgender and other gender-diverse persons supports what scholars have postulated.[265]

Recall that this was the case in Colombia as well. Prior to the Colombian Constitutional Court’s landmark, gender-inclusive abortion-rights ruling in 2022, providers were using deliberately narrow readings of the Court’s 2006 ruling to deny gender-diverse persons access to abortion even when “women” would otherwise have qualified. Hence, when the Colombian Constitutional Court issued its most recent ruling, it made clear that the legal protections therein extended to “women, girls, and pregnant persons.”[266] Essentially, the Constitutional Court recognized that gender-exclusive abortion language can facilitate unintended discrimination—among other harms—and that troubling recognition inspired change. It is time for the same to occur in the United States.

2. Debilitation of Strategy

Beyond its role in facilitating the denial of benefits, a related legal implication of gender-exclusive language is that it impedes what many believe to be the strongest strategy for advancing institutional change: unified, intersectional, coalition-based advocacy. Recall that this was one of the foundational pillars of the Green Wave, and that it had benefits for transgender persons and women alike. When asked about the size and solidarity-based structure of the movement, one of the Green Wave leaders described the situation as follows: “It took many years but we saw the coming together of different political generations . . . . We were very strategic in looking for alliances which could amplify our rights, amplify our arguments and reach more people,” including Pibas (teenagers), históricas (feminists from older generations who had been most active in the seventies), and transgender persons of all ages.[267] In this way, Green Wave advocates clearly understood the strategic benefit of gender-inclusive rhetoric and advocacy.

Scholars and advocates in the U.S. have similarly begun calling attention to the strategic benefits of gender-inclusive rhetoric. One core premise of this strategic argument is that legal and social movements are stronger when various groups affected by an issue gather together in a unified struggle for institutional change. Another essential premise of the strategic argument for gender-inclusive abortion rhetoric is that assaults on transgender rights and abortion rights “come from the same playbook.”[268]

If there were any doubt that assaults on transgender and abortion rights are indeed part of a broader interwoven movement, one need only look at the brief filed by the State of Alabama in Eknes-Tucker v. Alabama.[269] Eknes-Tucker arises out of a challenge to Alabama’s Vulnerable Child Compassion and Protection Act (V-CAP), which makes it a felony for any person to “engage in or cause” specified types of medical care for transgender minors.[270] The Department of Justice filed a complaint alleging that V-CAP discriminates against transgender youth by denying them access to certain forms of medically necessary care “while allowing non-transgender minors to access the same or similar procedures.”[271] The District Court issued an injunction preventing the state from enforcing the law, and, on appeal, Alabama cited the Supreme Court’s decision in Dobbs.[272] Just as Justice Alito had argued that there is no Fourteenth Amendment right to abortion because such a right is not “deeply rooted in this Nation’s history and tradition,”[273] Alabama argued in Eknes-Tucker that “no one—adult or child—has a right to transitioning treatments that is deeply rooted in our Nation’s history and tradition.”[274] According to Alabama, this meant that “[t]he State can thus regulate or prohibit those [gender-affirming] interventions.”[275]

Eknes-Tucker serves as a clear example of a case in which the Supreme Court’s Dobbs opinion, thought by many to implicate a “war on women,” is cited in support of a state law many view as part of a war on transgender persons and their right to medically necessary gender-affirming treatment. Notably, Alabama’s V-CAP is just one of 315 anti-LGBTQ+, and especially anti-transgender, bills that the Human Rights Campaign tracked in 2022.[276] The pace increased in 2023: 340 anti-LGBTQ+ bills were introduced between January 1st and February 15th alone.[277] Similarly, several sources tracked a wave of more than 500 anti-abortion laws introduced in the first few months of 2022.[278] It is time for the transgender-rights and abortion-rights movement to unite in a shared crusade for bodily autonomy and full access to reproductive care. Gender-inclusive abortion-rights rhetoric is one important, strategic way of demonstrating this unified struggle, in the spirit of the Latin American Green Wave.

C. Advancing Fundamental Principles of Good Legal Writing and Advocacy

A third reason gender-inclusive abortion-rights rhetoric matters is its role in advancing fundamental principles of good legal writing and advocacy. A growing base of scholarship has demonstrated the parallels between the values espoused in various inclusive-writing guides and those encountered in some of the canonical legal-writing texts—including commitments to precision, clarity, equity, and respect.[279] Similar arguments have been advanced as part of the longstanding push for “gender-neutral” writing in the law,[280] which can be traced to the modern feminist movement of the 1970s. Feminist language reformers framed their arguments primarily in terms of political utility, noting that gender-neutral language was essential to raise consciousness, denounce sexism, and empower women, but they also noted that their efforts presented a “win-win” opportunity for those who cared about clarity, accuracy, and respect in legal writing.

At the intersection of scholarship on inclusive writing broadly and gender-neutral drafting in the law is a small base of recent literature that seeks to modernize the “gender-neutral” movement of the 1970s in light of the growing visibility of LGBTQ+ persons, especially transgender persons.[281] This includes arguments for legal writers to use litigants’ preferred pronouns or to use the singular “they” and “their” in place of gendered alternatives.[282] As noted in a recent article by Donald Revell and Jessica Vapnek, many scholars “believe that the trajectory of recent language changes to account for women’s rights should guide and inspire the next wave of language transformation to take account of LGBTQIA+ rights” so that legislative drafting reflects and supports the legal status of transgender and other gender-diverse persons.[283] Again, these scholars root their arguments in fundamental principles of legal writing and advocacy, including precision, clarity, respect, dignity, fairness, and justice. This Section continues that trend, with a focus on highlighting how gender-inclusive abortion-rights language achieves the foregoing objectives.

1. Precision

Traditional, women-centric descriptions of pregnancy and abortion rights are imprecise. It presents an incomplete picture of reality to state that “above all others, women lacking financial resources will suffer from [the] decision [to overturn Roe v. Wade],” as the Dobbs dissent did,[284] without at least acknowledging the similar impacts on transgender persons facing financial challenges and assaults on their bodily autonomy.[285] And it is altogether incorrect to frame legal arguments in terms that reinforce the inconceivability fallacy by suggesting that only women are capable of pregnancy.

It is particularly imprecise to exclude transgender and other gender-diverse persons from these discussions in light of the fact that they face some of the most significant repercussions of abortion restrictions. Indeed, data suggests that transgender persons already face the greatest barriers to accessing reproductive care, including financial struggles, lower rates of medical insurance, and systemic discrimination in the healthcare system.[286] Many experts believe that this situation will only worsen in the post-Roe medical-legal landscape. For instance, in states with six-week abortion bans—like the aforementioned Texas Heartbeat Act[287] or the “Fetal Heartbeat” law upheld by Georgia’s Supreme Court[288]—transgender men are at a disproportionately high risk of missing the brief gestational period during which they can access legal abortion services. This is because many transgender men experience menstrual cessation as a result of hormone replacement therapy,[289] meaning that there are many cases in which there are no abnormal changes in the menstrual cycle to indicate pregnancy before the six-week cutoff. Considering that the southern United States has both (1) the highest number of transgender persons in the nation,[290] and (2) many of the strictest abortion laws,[291] it is not difficult to grasp the significance of this problem, nor is it challenging to perceive the recent wave of anti-abortion laws as a women’s-rights issue and a transgender-rights issue.

2. Clarity

Interwoven with the idea of precision in legal writing is the idea of clarity. To maximize clarity, one should convey their intended meaning in the most direct terms possible.[292] The conventional wisdom is to “say what you mean and mean what you say.”[293]

This “say what you mean and mean what you say” principle is operative here. If transgender- and gender-diverse persons are included in our legal doctrines, then advocates, judges, legislative drafters, and other legal writers should make this clear by explicitly mentioning them. The alternative approach, which renders these populations invisible in the eyes of the law, creates ambiguity around whether their omission was intentional—meaning that abortion protections should not extend to them—or whether it was simply believed that they would be incorporated within all references to “women.” Being subsumed under a category is not respectful, empowering, or dignifying; nor is it the clearest way of articulating the population at issue. Therefore, the strongest legal writing in this area would follow the lead of Argentina, Mexico, and Colombia in extending abortion protections to gender-diverse persons in the most inclusive, visible ways possible.

3. Respect, Dignity, Fairness, and Justice

Although the previous two sections demonstrate the benefits of gender-inclusive abortion-rights rhetoric in advancing principles of precision and clarity, it should be stated unequivocally that respect, dignity, fairness, and justice are the strongest values undergirding such rhetoric. These concepts are foundational to the ethos of legal writing, legal advocacy, and the legal system writ large.[294] Indeed, traces of these values—especially dignity—have played critical roles in shaping some of the Supreme Court’s most storied opinions in the realms of equal protection and antidiscrimination. In Brown v. Board of Education, for instance, the Supreme Court relied in large part on African-American schoolchildren’s “feeling of inferiority as to their status in the community” in holding that racially segregated educational facilities are inherently unequal and thus violate the Equal Protection Clause of the Fourteenth Amendment.[295] Similarly, attention to dignity, respect, fairness, and justice has been evident in the Supreme Court’s opinions concerning LGBTQ+ equality, where laws that “demean the[] existence [of]”[296] or otherwise “serve[] to disrespect and subordinate”[297] LGBTQ+ persons have been deemed unconstitutional in large part because of the “dignitary wounds”[298] that they inflict.

As University of Virginia Law professor Rachel Bayefsky has noted, “dignity and respect can be understood in multiple ways”[299]—a statement that this Note would argue is equally true for abstract principles of fairness and justice as well. Accordingly, a vast array of legal scholarship has been devoted to understanding the myriad meanings that these concepts have possessed as philosophical, social, and constitutional terms over time.[300] Extrapolating from these works, this Note suggests that the power of gender-inclusive abortion-rights rhetoric in promoting principles of respect, dignity, fairness, and justice can be thought of along three axes: (1) external, socioexpressive accounts of dignity; (2) internal, psychosocial accounts of dignity; and (3) philosophical, inherent-worth accounts of dignity.

a. The Philosophical, Inherent-Worth Account

The philosophical, inherent-worth account views dignity as an innate attribute based on characteristics like humanity, autonomy, or moral capacity. It has strong ties to the moral theory articulated by eighteenth-century philosopher Immanuel Kant.[301] Under this view, the dignitary consequences of disrespectful, unfair, or unjust treatment matter independently of such treatment’s external or internal effects on the individual.[302] Rather, gender-exclusive language that renders someone invisible or that denies their existence is normatively concerning because it violates our basic “moral commitments to respect the equality and dignity of our fellow persons.”[303] LGBTQ+ advocates often frame this in terms of “courtesy”—a seemingly simple commitment to utilizing language that recognizes and affirms the lived experience of gender-diverse persons. Traces of this philosophical, inherent-worth account are evident in the following excerpt from Cazembe Murphy Jackson, a transgender community organizer focused on reproductive justice for all persons with a capacity for pregnancy:

I think what trans people are asking for inside of the reproductive justice movement is the bare minimum . . . . Just recognize that we exist, we’re here, we’re a part of this movement, too. We need access to this healthcare just like everybody else.”[304]

b. The External, Socioexpressive Account

Instead of the philosophical, inherent-worth account, Bayefsky argues that advocates should attempt “to capture the social experience of dignity and its absence.”[305] Bayefsky’s view encapsulates what this Note refers to as the external, socioexpressive account of dignity. Under this framework, dignitary harm troubles us because of its effect in shaping social attitudes and encouraging the potentially discriminatory or otherwise odious behavior of others toward the disrespected group. This view is redolent of Section III.A.’s discussion of law’s expressive and educative functions in countering stigma, discrimination, and harm. As that Section already offered an extensive discussion of the role that gender-inclusive abortion-rights rhetoric can play in promoting respect, dignity, fairness, and justice, this Section will not belabor those points. It will simply note that readers interested in additional evidence of dignitary benefits flowing from gender-inclusive rhetoric can find several examples in existing scholarly works.[306]

c. The Internal, Psychosocial Account

The internal, psychosocial account of dignity is similarly rooted in “the social experience of dignity and its absence,” but it focuses more on the individual, psychological impact that certain experiences have in causing embarrassment, anxiety, depression, and other forms of emotional distress. Although difficult to measure, a growing base of research and community testimony highlights the dignitary harms of gender-exclusive language—and conversely, the dignitary benefits of gender-inclusive language. For instance, a study that examined the pregnancy and chestfeeding experiences of twenty-two transgender people who were assigned female at birth revealed that medical providers’ use of women-centric, gender-exclusive terminology—words like “she,” “mom,” and “breasts”—intensified gender-related psychological distress.[307] Staggeringly, 35% of this participant sample reported postpartum depression, suggesting the importance of adopting inclusive language to avoid inflicting harm.[308] Similarly, other research suggests that verbal microaggressions like using incorrect pronouns to refer to a transgender person are tied to myriad negative psychological and physical outcomes, including lower self-esteem, greater anxiety and depression, difficulty sleeping, and overall diminished cognitive function.[309] In contrast, as noted earlier, various forms of gender affirmation—including use of gender-affirming pronouns and clothing and access to legal name and gender changes—are associated with a 50% decrease in suicide attempts among transgender youth.[310]

Beyond formal studies, examples abound of transgender and other gender-diverse persons expressing how gender-exclusive pregnancy language makes them feel disrespected, undignified, and unfairly or unjustly disregarded. Consider the following anecdote:

I had to have a mammogram done recently, and I was very uncomfortable being placed in a women’s only space to have a women’s procedure to prevent what is usually considered a women’s disease. Because I am nonbinary, I hated being shoved into that female box. While my biological sex is female, my identity is not.[311]

It is time for the legal profession to join the health profession in recognizing the discomfort, distress, and dismay that our language surrounding pregnancy and abortion can cause. When the legal discourse surrounding abortion rights discusses “women . . . women . . . women,” [312] it does a linguistic disservice that is different in substance—as it is speaking the language of the law, rather than obstetrics—but not in kind from the examples offered above. Either way, transgender and other gender-diverse persons with a capacity for pregnancy are made to feel stigmatized, unwelcome, and either “shoved into that female box”—reduced to the category of the “subsumed, the invisible, . . . the marked”[313]—or excluded altogether. A genuine commitment to the basic legal principles of respect, dignity, fairness, and justice calls for change.

Conclusion: Change Is Possible

“Language is power, life and the instrument of culture, the instrument of domination and liberation.”[314]

This Note has sought to advance the literature on transgender visibility and abortion rights by adopting a comparative-law approach that suggests the United States has much to learn from Latin America’s “Green Wave” nations. Whether as a reflection of the “inconceivability fallacy” rearing its ugly head—with legal authorities in the United States failing to recognize that persons other than cisgender women can get pregnant—or as a strategic decision that eschews gender-inclusive pregnancy language for other reasons, it is clear that transgender, nonbinary, and other gender-diverse persons with a capacity for pregnancy remain largely invisible across some of the United States’ most notable judicial, legislative, and executive statements on abortion rights. In contrast, the recognition of transgender and other gender-diverse persons has become a standard feature of abortion-rights rhetoric in Argentina, Mexico, and Colombia.

Part III of this Note demonstrated several reasons why a change in the United States’ abortion-rights rhetoric is necessary. Part of the power of the trends emerging from the “Green Wave” nations is that they also offer tangible, inspiring evidence that change is possible. Contrary to the criticisms levied by Bette Midler, J.K. Rowling, Helen Lewis, and others who have opposed gender-inclusive pregnancy language, the “Green Wave” nations send a clear message to the world that implementing gender-inclusive pregnancy language in the law does not necessitate an erasure of women, nor does it require an absurd distortion of otherwise intuitive language. Rather, women and gender-diverse persons with similar capacities for pregnancy can coexist in abortion rhetoric, and the law is made all the more effective when it explicitly recognizes this fact.

The ideas expressed in this Note, though part of an emerging scholarship base that is novel and transformative, are far from revolutionary. Even the most vocal critics of gender-inclusive language would have to admit that the demands of this Note are redolent of feminist efforts to replace predominantly male-gendered language with alternatives that duly recognized men and women in the 1970s, ‘80s, and ‘90s.[315] Those proposed changes were initially met with resistance, but now gender-neutral language is considered standard practice by style guides in the legal profession and beyond, largely in recognition of its importance in advancing the same principles of precision, clarity, respect, dignity, fairness, and justice discussed in Part III of this Note.[316] This should serve as another inspiring indication that change is possible in the realm of U.S. abortion-rights rhetoric: transgender advocates are simply hoping to achieve for transgender, nonbinary, and other gender-diverse persons today what feminists managed to accomplish for women in the late twentieth century. To the extent that women and many persons who do not identify as women are facing similar substantive assaults on their bodily autonomy, lessons from the Green Wave demonstrate that the strongest rhetorical opposition to these attacks will be rooted in gender-inclusive, coalition-based legal advocacy.

Justice Gorsuch began the Supreme Court’s majority opinion in Bostock v. Clayton County with a profound aphorism: “[s]ometimes small gestures can have unexpected consequences.”[317] This is certainly the case with gender-exclusionary rhetoric, even if the elision is unintentional. Conversely, gender-inclusive rhetoric has transformative ramifications, especially in the underappreciated realm of transgender pregnancy and abortion. Argentina, Mexico, and Colombia all recognized this during their “Green Wave” abortion expansions and adapted their legal rhetoric accordingly. It is time for the United States to “catch the wave,” so to speak, by embracing similar changes.