It is becoming rather common these days to see and hear the words “pregnant person” rather than “pregnant woman” when referring to a pregnant woman. I am still fairly certain that only a female can become pregnant, so I can’t quite grasp the necessity of using the term “person” when referring to someone who is pregnant.

Until recently I would just shake my head and laugh whenever I read or heard anyone say “pregnant person.” Even today when a large number of people have become “transgender,” I don’t think science has yet been able to impregnate a biological male. I would have thought that references to “pregnant persons” as opposed to “pregnant women” was unnecessary. Now I know that I was wrong.

How do I know that I was wrong? Because a federal district court judge recently, in a formal court opinion, told me so. In the decision of a federal court blocking the Texas’ six-week abortion ban, the judge stated that the “Court recognizes that not all pregnant people identify as women.” A federal court, therefore, uses the term “pregnant person” rather than “pregnant woman.” Apparently, the judge sees nothing incongruous in saying this in a case dealing with “women’s” rights.

Whether our entire federal judiciary will follow this one judge’s lead remains to be seen. However, we must acknowledge that the camel’s nose is clearly in the tent. We should not underestimate the significance of judicial recognition of something.

Even more recently, the camel got its whole head in the tent. The Associated Press reported:

“The United States has issued its first passport with an ‘X’ gender designation, marking a milestone in the recognition of the rights of people who do not identify as male or female, and expects to be able to offer the option more broadly next year, the State Department said…”

The U.S. special diplomatic envoy for LGBTQ rights, Jessica Stern, also said, “when a person obtains identity documents that reflect their true identity, they live with greater dignity and respect.” 

Apparently, the government now accepts that how one identifies themselves is their “true identity” — as opposed to their biology.

However, the focus of this column is not about “pregnant people,” but rather the significance of people beginning to “identify” as something that by all previously recognized standards they are not. A federal court has now granted acceptance to the idea that a woman can choose to identify herself as something other than a woman. I may be old fashioned, and I accept the adage that “a rose by any other name would smell as sweet,” but when I learned about the birds and the bees there were only two sexes. And when I took biology in school I learned that, with few exceptions, this was also true for plants and animals.

A federal court has now granted acceptance to the idea that a woman can choose to identify herself as something other than a woman.

What troubles me about this judicial recognition of “identity” overruling biology is its implications: where does it all end? If a woman can identify as a man or a man identify as a woman, and have this identity judicially recognized, what are the limits to self-identification? If the judiciary recognizes the right of a woman to refuse to identify as a woman, does she have to identify as something else? Can she refuse to identify as a person? Can she refuse to identify as “human”? Without making a reductio ad absurdum argument that she might then be able to identify as a plant or animal, there are some serious issues that arise from allowing people to choose their gender (or other) identity.

Considering the existence of various affirmative action programs, a white person might wish to identify as a person of color to gain the benefit of such programs. One high-profile case of a white woman “passing” as black and defending her decision to do so as “trans-racial” already exists. Recognizing the existence of government programs providing benefits to minority-owned businesses, a white male might like to identify as a female person of color. A tenure-track faculty member might identify as a Native American for career gain. 

We are already witnessing a number of problems arising out of gender changes by means of surgery or hormone treatments. Most involve biological males who have transitioned to female and seek to participate in women’s sports. There is also concern about biological men using women’s locker rooms or restrooms. If one can simply identify as being of the other gender without undergoing gender transformation, and have courts recognize the claimed identity, such problems will be increased.

The problem with what this judge has done is that he (if that is his chosen pronoun) has given judicial recognition to nonsense. It is one thing for individuals or even private groups to expound this kind of absurdity, but it is dangerous when it acquires legitimacy. We have laws, for example, the “Violence Against Women Act” that serve legitimate interests. Do all of our laws that draw some legitimate distinction between male and female now become difficult or even impossible to apply?

A pregnant woman has every right to refuse to identify as a woman, but she has no right to demand that others refuse to consider her a woman. And we have every right to criticize any judge who surrenders to such a demand.

Howard Lurie is Emeritus Professor of Law, Charles Widger School of Law, Villanova University.

2 thoughts on “Howard Lurie: On “pregnant persons” and Descartes”

  1. This whole argument hinges on the slippery slope fallacy – that identifying differently from birth gender is somehow going to lead to anyone identifying as anything. I’d think a law professor would know enough to rely on logical fallacies! (I guess not when their own ideology and bias gets in the way.)

    “In informal logic, slippery slope is a fallacy in which a course of action is objected to on the grounds that once taken it will lead to additional actions until some undesirable consequence results. Also known as the slippery slope argument and the domino fallacy.”

  2. There already has been cases where individuals have identified as members of protected groups to which they are not truly members. The situations already exist and have been litigated either in the court of law or of public opinion. Not truly a groundswell, but not something to be dismissed as a slippery slope fantasy.

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