Last year, a brand-new labor-and-delivery hospital opened on the well-to-do Upper East Side of New York City. Its name, the Alexandra Cohen Hospital for Women and Newborns, might strike most people as innocuous or straightforward. But to some people, the suggestion that a hospital where babies are born is for women is offensive, because transgender and nonbinary people who do not identify as women can also get pregnant and deliver babies.
Only niche groups tend to care about how Americans discuss gender and pregnancy—including whether it’s better to use the term pregnant people instead of pregnant women. But those groups care a lot. Representative Cori Bush of Missouri used the term birthing people in a hearing, causing a mini-uproar on social media. “When we talk about ‘birthing people,’ we’re being inclusive. It’s that simple,” the pro-abortion-rights group NARAL tweeted in her defense. Others, however, see this kind of language as exclusionary because it erases women and mothers as worthy categories of identity. Ann Romney, the wife of Senator Mitt Romney, tweeted angrily in June, “The Biden administration diminishing motherhood to ‘birthing person’ is simply insulting to all moms.” It was the first time she had tweeted all year.
And yet, Americans who don’t mainline niche political or linguistic fights probably don’t even know this is a debate. When I texted a friend in a small, liberal-ish city about this topic recently, he had no idea what I was talking about.
To understand the contours of the debate, I called Louise Melling, the deputy legal director of the American Civil Liberties Union, who leads projects on women’s rights and LGBTQ rights. Although she does not identify as transgender or nonbinary, she is one of the country’s most influential progressive legal thinkers on gender norms and the law. Our conversation has been condensed and edited for clarity.
Emma Green: Why do you believe it’s important to shift our language around gender and pregnancy?
Louise Melling: First of all, if we’re talking about “pregnant people,” that language says to people—to transgender men and to nonbinary people—“we see you.” It should do a fair amount of work to help address discrimination. If we talk about “pregnant people,” it’s a reminder to all of us to catch ourselves when we’re sitting in the waiting room at the GYN that we’re not going to stare at the man who’s there. We’re not going to be disconcerted.
More importantly, we’re not going to behave in a way that makes that person uncomfortable—that signals discrimination and unwelcomeness to them. And that’s incredibly important when we think about the kinds of discrimination that continue to be pervasive against transgender people and nonbinary people.
It’s nothing short of heartbreaking to read about the experiences of transgender people seeking health care. If somebody is hostile to you, you’re not going to go back. So we have really serious consequences for transgender people—people who already are really in need of health care, who are often of lower income because of all the discrimination they face.
It is the reality that not only women seek abortions. It is not only women who are birthing. It is not only women who are seeking mammography and pap smears and other care. And recognizing that does real work.
Green: This may be hard to summarize, but where do things stand—both in terms of how these terms are used legally, but also how they’re used in the culture?
Melling: It’s interesting to me, for example, that the CDC website now speaks of “pregnant people.” With every passing year, it’s more pervasive. My GYN just talked to me about this: “Oh, I just learned this,” and was really working to change her language.
Green: Within the legal worlds you run in—at organizations like the ACLU—is there consensus on the use of gender-neutral terms to refer to pregnancy? Or is there some remaining debate?
Melling: In the spaces in which I find myself most commonly, people are really committed to talking about “pregnant people.” People are really committed to using gender-neutral language. Historically, people have been punished for deviating from gender norms. That includes women, that includes transgender people, that includes nonbinary people. I see commonality, not difference, in this struggle.
I work on reproductive rights. I work on women’s rights. I work on LGBTQ rights. My colleagues are people who are in pain. My colleagues are people who are excluded because of language. They are threatened because of language. When you think about the bills that passed this year, they try not only to attack, but almost obliterate transgender people. A total erasure from the language has huge consequences.
The depth of the discrimination, the pain of the discrimination, the urgency of opening up space for people to be seen—that’s something I’ve really learned from my colleagues.
Green: Your gig covers a lot of different angles of the law—you work on women’s rights, and you work on LGBTQ rights. And I wonder: Is there a cost to gender-neutral language around pregnancy for women? For example: An employer sees a pregnant woman and notices her bump starting to grow and immediately thinks, “Oh, I need to take her off that project because she’s going to become a mom and she’s going to want to step back from work or stay home.” For better or worse, I don’t know if employers would have the same kind of attentiveness to changes in a trans man’s body, at least not around pregnancy.
If, legally speaking, you treat pregnancy like it’s gender-neutral, do you think that could end up hurting women, who face different kinds of discrimination than trans and nonbinary people?
Melling: I don’t see it as an either/or. For example, I think it’s critical that we talk about “pregnant people,” that we use language that tries to address discrimination, that lets transgender people and nonbinary people feel seen.
At the same time, I also talk about the ways in which restrictions on abortion constitute gender discrimination and, in particular, target women. When legislators are passing these measures, they have women in mind, and they’re passing these measures as part of a historic trend of trying to press women into one particular role. Abortion restrictions perpetuate gender stereotypes and thwart prospects towards equality.
You can acknowledge that, while women may be the dominant group hurt by this particular restriction, abortion is not a service sought only by women.
Green: On the one hand, you can think about terms like pregnant people as being more inclusive: They provide legal cover to the broadest universe of people who might experience pregnancy, and they also invite us to reimagine who might have this kind of experience.
But aspects of these terms are also exclusionary. Talking about “birthing people” means you are not talking about “women giving birth” or “birth moms.” That’s an affirmative identity that people really care about.
Do you agree with that at all—that gender-neutral language around pregnancy may be exclusionary in some way?
Melling: Not if we’re doing it right. You can talk about birthing as an experience that is common to so many women, as well as an experience for transgender men and nonbinary people. You can have more expansive language. This is how people sometimes talk about BIPOC: That’s a broad category, but then you can be more specific about how certain restrictions affect Indigenous people or Black people. You can put emphasis in different places while still recognizing broader harm. You just have to be more intentional. You have to do more work.
One analogy that I think might help is breast cancer. I don’t even remember when I first heard about men who get breast cancer. I will admit: I hadn’t thought about it. The man who has breast cancer has his own fear of the diagnosis. Then he’s going to struggle going into a whole host of places that are gendered. We addressed a gap in care to try and encourage women to come forward and have a community. But we also need to make space so that men with breast cancer can be recognized both by the medical profession and by the rest of us.
Green: It seems like there’s also a flip side to that example: Without specific, gendered targeting around particular health needs, women might also miss out on care. Pregnancy is really hard! And it’s often a super gendered experience. You’re chained to your body, and gender really shapes how people view you and what you’re going through.
I think at least some women navigate that by affirming their new identity: I am a mother. This is part of being a woman. I see myself in that. I find solace in it. So I guess this comes back to the same question: Do you think there’s something lost in trying to create a more inclusive vision of pregnancy?
Melling: I don’t think the increasing reliance on language like pregnant people means you can’t define yourself as a mother, or say this is an experience many women go through, or recognize that I’m experiencing this in really gendered ways. One of the things that Ruth Bader Ginsburg emphasized was the way in which gender stereotypes, gender roles, and gender norms hurt all of us by locking us into some kind of vision. Women can speak about our experience, but that doesn’t preclude men from speaking about how gender has affected them, too.
Talking about birthing and gender discrimination is still something that women can do. We just also simultaneously want to talk about the ways in which we’re not recognizing trans men as parents. If we’re doing this right, we’re creating more, not less, conversation, because we’re talking about the many different ways in which gender expectations are playing out on who we are.
Green: Is there any part of your feminist self that has worried about the potential consequences of this as a cultural and legal move?
Melling: No, because I see the commonality. That’s one of the beauties of being at the ACLU. You live intersectionality in terms of conversations about the law and conversations you have in the kitchen—in your collegiality as well as your legal theory.
Green: This may be an unwelcome imaginative exercise. But I wonder if you have spent time thinking about why this makes some people on the right so mad. Why do you think people care about this?
Melling: Look, why do people get mad that people marry the person they love? If you want to have a child on your own, why do people get mad? If you fall in love with somebody of another race? I think there may be some people who are confused at first—changes in language have to come with education. But for those prominent politicians, whether it’s on abortion rights or transgender rights or voting rights, there’s clearly an effort to have society be more narrow in imagination and inclusivity.
Green: Do you think it’s possible to make a good-faith argument against the use of birthing people?
Melling: I definitely think there’s a good-faith person who wants to ask a question. Change is hard. People want to hold on to their particular world. Or maybe it is not intuitive to people. But maybe it was hard for people to all of a sudden have a woman be the person at the law firm who managed their case, too.
Green: This may be another unwelcome imaginative exercise. But I’m sure you’ve heard the argument from some people on the right that the left has a culturally authoritarian streak. They embrace certain buzzwords and ways of thinking that are often reflective of academic thought, and it can seem like overnight, everyone is expected to use those words. If you don’t use the right language, you’re considered a bigot, or you get canceled.
Do you worry about that? That trying to shift something as fundamental as people’s perception of motherhood might further fuel this kind of cultural backlash?
Melling: I think this characterization is exaggerated and not true in really profound ways. Nobody is stopped from speaking about her motherhood or the importance of that. I go out of my way to talk about parenting so that men can be seen as parents. Not ‘You’re not a mother,’ but [opening] up space so that we no longer have the cultural expectation that women are the caregivers.
We need to do a good job of explaining why we care—explaining what the goals are here and talking about the ways in which gender stereotypes really do lock everybody into different kinds of roles.