Pregnant Men: Repronormativity, Critical Trans Theory and the Re(conceive)ing of Sex and Pregnancy in Law
| DOI | 10.1177/0964663912474862 |
| Date | 01 June 2013 |
| Published date | 01 June 2013 |
| Subject Matter | Articles |
Article
Social & Legal Studies
22(2) 211–230
Pregnant Men:
ª The Author(s) 2013
Reprints and permission:
Repronormativity,
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0964663912474862
Critical Trans Theory and
sls.sagepub.com
the Re(conceive)ing of
Sex and Pregnancy in Law
Lara Karaian
Carleton University, Canada
Abstract
This article argues that a critical re(conceive)ing of sex and pregnancy is required in law.
Drawing on the dual meaning of conceive – ‘to become pregnant’ and ‘to imagine, or form
a mental representation of’, the goal of this article is to better ensure that pregnant men
and trans individuals are not denied their reproductive rights, the legal recognition of their
gender identities, and the protections of pregnancy discrimination law. Here, I survey
molecular biologists’ and critical trans theorists’ scientific and discursive challenges to the
understanding of sex as biologically determined; I map the extent to which biological and
repronormative discourses – those which materialize and maternalize female identity –
underpin legal determinations of trans subjects’ sex and their ability to access state issued
documentation; finally, I suggest that feminists’ efforts to construct pregnancy discrimi-
nation as sex discrimination may unwittingly factor into discriminatory practice against
pregnant men by reifying pregnancy as necessarily female and thus pregnant men as ‘really’
women. Drawing on Darren Rosenblum’s call to unsex parenting, I conclude by briefly
considering the opportunities presented by unsexing pregnancy in law.
Keywords
Pregnant men, critical trans theory, repronormativity, sex, gender, pregnancy discrimi-
nation law, ‘unsexing’ pregnancy
Corresponding author:
Lara Karaian, Institute of Criminology and Criminal Justice, Carleton University, C572 Loeb Building, 1125
Colonel By Drive, Ottawa, ON K1S 5B6, Canada.
Email: lara_karaian@carleton.ca
212
Social & Legal Studies 22(2)
Introduction/Foreplay
Until recently, male pregnancy was considered inconceivable. When, in 2000, trans the-
orist and activist Patrick Califia reported in New York’s Village Voice that his boyfriend,
Matt Rice, also a trans man, had become ‘the mother of [Califia’s] child’, the revelation
went largely unnoticed.1 Then, in 2008, Thomas Beatie came out in The Advocate as a
pregnant man who was having difficulties finding an obstetrician. Nancy, his wife by
law, had had a hysterectomy due to endometriosis and was unable to become pregnant.
Beatie stopped his testosterone hormone injections and underwent artificial insemina-
tion, becoming the first ‘legally defined’ male to become pregnant in North America.
Despite the fact that Beatie’s self-outing and the birth of his daughter, Susan, was widely
publicized by both national and international new sources, Beatie went on to give birth
with little fanfare to two more children, Austin Alexander in 2009 and Jensen James in
2010.
In this article, I employ the dual meaning of conceive – ‘to become pregnant’ and ‘to
imagine, or form a mental representation of’ – to consider how pregnant men engender a
reimagining of the dominant epistemological and ontological understandings of sex,
gender, and pregnancy, and their relationship to one another, in law and beyond. As
Andrew Sharpe has persuasively demonstrated, the architecture of transgender jurispru-
dence across the United States, United Kingdom and Australia has produced a legal
definition of sex and the legal recognition of transgender subjects, which is largely influ-
enced by a biologically based understanding of ‘natural’ heterosexual intercourse driven,
in part, by homophobia and the specter of gay marriage (2002). However, in Sharpe’s
analysis of the judicial anxiety over the ‘sexual life of the couple’, ‘namely, male ‘‘hor-
ror’’ at the prospect of engaging unwittingly in ‘‘unnatural’’ (homo)sexual intercourse’
(2002: 107), the role of one’s procreative capacity in determining their legal sex has gone
undertheorized. As Sharpe himself acknowledges, this is, in part, because ‘non-
disclosure of infertility does not serve to vitiate a marriage contract’ (2002: 107). While
this may be the case, as legal scholar Katherine Franke has suggested,
. . . somehow reproduction continues to be regarded as more inevitable and natural than het-
erosexuality. That is to say, repronormativity [the materialization and maternalization of
female identity] remains in the closet even while heteronormativity has stepped more into
the light of the theoretical and political day. (2009: 31)
While Franke draws attention to the underexplored and ‘sticky normative questions’
that repronormativity raises for feminism ‘with respect to choice, coercion, and policies
that incentivize and disincentivize reproductive uses of women’s sexual bodies’ (2009:
31), in this article, I consider the impact of repronormativity on legal determinations of
one’s sex and on legislative requirements that work to deny trans subjects their reproduc-
tive freedoms and rights. Given that the numbers and visibility of pregnant men will
likely proliferate, and in light of the potential material consequences of their status –
including forcible sterilization as a condition of transition; the denial of certain benefits
from insurers and employers; and the inability to have one’s status as mother/father/par-
ent accurately recorded on state issued documentation – I argue that pregnant men
Karaian
213
engender a critical re(conceive)ing2 of the idea that sex is biologically determined, that
pregnancy is necessarily sexed as female, and that one’s sex, gender identity and iden-
tification as mother/father neatly align.
This article is divided into three sections. In Part I: ‘Inter(dis)course:3 Sex and/as
Biology’, I introduce the scientific and discursive challenges posed by molecular biol-
ogy and critical trans theorists, respectively, to the epistemological and ontological
understanding of sex as biologically determined. Here, I emphasize the scientific and
discursive contributions of contemporary theorists to an understanding of sex as a his-
torical and cultural concept, one that is both biological and discursively constructed
and which must involve personal agency in the determination of its meaning. In Part
II: ‘Conception: Sex and/as Pregnancy’, I reveal the extent to which biologically based
notions of repronormativity impact upon legal determinations of one’s sex via a brief
survey of the role of reproductive discourses in legislative and legal requirements –
such as forcible sterilization – for accessing legal rights and state issued documenta-
tion. Having set out the role of repronormativity in determining trans subjects’ legal
sex and reproductive freedoms, in Part III: ‘Labour: ‘‘Unsexing’’ Pregnancy Discrim-
ination Law’, I posit that feminists’ efforts to construct pregnancy discrimination law
as discrimination against women, while apt at the time, may be used to deny pregnant
men protection from pregnancy discrimination. I consider the opportunities presented
by reconceiving of pregnancy as a ground of discrimination divorced from sex for
broadening pregnancy discrimination’s protected class and engendering new ways of
being men/women and mothers/fathers. Ultimately, by tracing the role of repronorma-
tivity in legal and legislative determinations of trans subjects’ sex, I suggest that male
pregnancy provides an opportunity to reconceive the idea that (1) one’s sex is deter-
mined by one’s physiology; (2) the physiological ability to become pregnant or to
reproduce is rightfully coupled with determinations of sex; and (3) the status of
father/mother aligns neatly with one’s sex and self-identification as male/female.
Inter(dis)course: Sex and/as Biology
Currently, a widespread social and legal reliance on a distinction between sex and gender –
wherein the former is considered biologically based, while the latter is deemed socially con-
structed – continues to exist. As Sharon Cowan (2005) has argued, this distinction is in large
part a result of second wave feminists’ efforts to resist the notion that one’s biology deter-
mines their destiny, a distinction famously captured by Simone de Beauvoir’s oft-cited quote,
One is not born, but rather becomes a woman. No biological, psychological, or economic
fate determines the figure that the human female presents in society; it is civilization as a
whole that produces this creature, intermediate between male and eunuch, which is
described as feminine. (1949: 267)
Despite the widespread acknowledgement that ‘expectations and assumptions about
men’s and women’s social behaviour are constructed’ (Cowan, 2005: 71), Cowan sug-
gests that sex and the body have been left,
214
Social & Legal Studies 22(2)
. . . undertheorised in the ‘‘natural’’ realm of biology. Gender as social behaviour can be
challenged, changed, while sex is presumed to be left intact. In addition there is no recog-
nition of the way in which our understanding of each term is bound up with the other, con-
ceptually as well as in practice. (2005: 71)
In this section, I demonstrate how the nature and meaning of sex has come to occupy a
range of disciplinary investigations, including molecular biological and discursive chal-
lenges to the immutable and material ‘truth’ of sex.
According to Vernon Rosario, a biomedical engineer, psychiatrist and history of sci-
ence scholar, ‘The biological difference between the sexes versus their transmutability
has been debated since antiquity’ (2009: 271). Arguing that molecular biology has
...
To continue reading
Request your trial