Law professor rebukes Josh Hawley’s ‘transphobic’ line of questioning in abortion rights hearing

‘We can recognise this impacts women while also recognising this impacts other groups. Those things are not mutually exclusive, Senator Hawley’

In a series of extraordinary testimony to a Senate committee on the future of abortion in the US after the dissolve of Roe v Wade, an abortion rights advocate and law professor issued a sharp rebuke to Republican Senator Josh Hawley, who appeared to dismiss that transgender people could become pregnant.

During a Senate Judiciary Committee hearing on 12 July, the senator from Missouri took issue with her use of the phrase “people with a capacity for pregnancy”, asking her, “Would that be women?”

“Many women, cis women, have a capacity for pregnancy. Many cis women do not have a capacity for pregnancy. There are also trans men who are capable of pregnancy as well as nonbinary people who are capable of pregnancy,” explained Khiara Bridges, a professor of law at University of California Berkeley School of Law and reproductive health scholar.

“So this isn’t really a women’s right’s issue,” Mr Hawley replied.

“We can recognise this impacts women while also recognising this impacts other groups. Those things are not mutually exclusive, Senator Hawley,” she said.

Mr Hawley then asked: “So your view is, the core of this right is about what?”

“I want to recognise that your line of questioning is transphobic and it opens trans people to violence by not recognising them,” Ms Bridges said.

Mr Hawley responded: “Wow, you’re saying I’m opening up people to violence by asking whether or not women are the folks who can have pregnancies?

Ms Bridges noted that transgender people are disproportionately more likely to attempt suicide. An annual survey from LGBT+ advocacy and suicide intervention organisation The Trevor Project found that transgender and nonbinary youth whose identities were affirmed by their families attempted suicide at half the rate of those who did not.

“Because denying that trans people exist, and pretending not to know that they exist,” Ms Bridges added before Mr Hawley interjected.

“I’m denying trans people by asking you if you’re talking about women having pregnancies?” he said.

“Are you? Are you? Are you? … Do you believe that men can get pregnant?” she asked.

“No, I don’t,” Mr Hawley said.

“So you’re denying that trans people exist?” she said.

“And that leads to violence?” Mr Hawley replied. “Is this how you run your classroom? Are students allowed to question you?”

“We have a good time in our classroom,” she said. “You should join. You might learn a lot.”

Nearly three weeks after the US Supreme Court struck down the constitutional right to abortion care, 10 states have outlawed abortion in nearly all instances. As many as 26 states could make abortion care illegal or immensely restricted without overarching protections affirmed in the Roe v Wade decision.

The use of inclusive language – including cis women and transgender men and nonbinary people – in abortion rights advocacy reflects the far-reaching impacts for reproductive healthcare access with the end of legal abortion care across the US.

A 2020 study by Planned Parenthood and reproductive health research group the Guttmacher Institute estimated that as many as 530 abortions among the 862,000 abortions performed in the US in 2017 involved transgender or nonbinary people, a figure that analysts believe may be higher.

Nearly half of transgender people, and 68 per cent transgender people of colour, have reported mistreatment or abuse as a barrier to access healthcare, according to a 2021 report from the Center for American Progress, a liberal think tank.

The concurring opinion from Justice Clarence Thomas in Dobbs v Jackson Women’s Health Organization also suggested that the court “reconsider all of this court’s substantive due process precedents” – including landmark cases involving same-sex marriages, gay sex, and contraception.

“Because any substantive due process decision is ‘demonstrably erroneous’... we have a duty to ‘correct the error’ established in those precedents,” Justice Thomas wrote. “The question would remain whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.”

Those cases include Griswold v Connecticut, which ruled that states had no right to ban contraception; Lawrence v Texas, which struck down laws banning same-sex sex; and Obergefell v Hodges, which ruled that same-sex couples could legally marry.

In a statement following the ruling, Sara Kate Ellis with GLAAD, the largest LGBT+ media advocacy organisation, said Justice Thomas’ writing is a “blaring red alert” for LGBT+ people.

“We will never go back to the dark days of being shut out of hospital rooms, left off of death certificates, refused spousal benefits, or any of the other humiliations that took place in the years before Obergefell,” she said. “And we definitely will not go back to the pre-Lawrence days of being criminalized just because we are [LGBT+].”