Elisabeth Smith, Resident Blogger (’14, University of Washington School of Law)

Thinking about Tuesday makes me a little nauseous.  We might reelect President Obama or be treated to another “what if” when he hosts Saturday Night Live in 2018. In Washington State, voters will approve or defeat Marriage Equality and legalize or continue to criminalize marijuana. Both Referendum 74 and Initiative 502 are reproductive justice issues that touch RJ’s meta rights (the right to parent; the right not to parent; and the right to parent the child you have with dignity and free from violence or oppression). Wednesday could be an incredible day or a really, really terrible one.  I certainly don’t want to sob my heart out like 2004.

Referendum 74

On Thursday night I attended a Referendum 74 debate between Jeff DeGroot, a 3L and comments editor of the University of Washington Law Review, and Joseph Backholm, chairman of Preserve Marriage Washington.  Jeff was raised in Oregon by two mothers and he made the point over and over again that his parents are like any other parents. In Jeff’s words, Mr. Backholm only offered distractions.  Let me give you a few: marriage equality means (1) parents cannot control their children’s public education; (2) business owners won’t be able to live out their beliefs; and (3) lesbians and gay men in Washington already have all the rights of associated with marriage via domestic partnerships. Jeff’s answers to those assertions were that education decisions are made on a local level with teachers, administrators, and parents; anti-discrimination statutes already prohibit discrimination based on sexual orientation; and the word marriage means more than domestic partnership ever could.

If it’s possible to qualify some of the things Mr. Backholm said as the worst, here’s what really made my blood boil: “for all 6,000 years of human history, marriage has been a union between one man and one woman;” “without fathers, children cannot survive and thrive and predictably end up in prison;” and “marriage equality will mean that men dressed as women can use women’s restrooms.” I would like to respond.

First, no. Marriage has looked very different at different times and in different places. Second, yes, fathers are important, but parenthood doesn’t require a penis. Heritage Foundation-inspired horror stories about single motherhood ignore the structural barriers that limit women’s pay and access to childcare. Patriarchy, racism, homophobia, and the criminalization of poverty all play their parts. Also, children raised by lesbian parents seem to fare really well. (Right Jeff?) Third, the rights of transgender people in Washington are protected by the state’s anti-discrimination laws: RCW 29.60.040.26.

Mr. Backholm gave us the kitchen sink argument, but the diversity of his distractions gives us a better vantage point from which to consider his opinion. Marriage equality is foremost about equality. Voting yes on Referendum 74 means that traditional parents like Jeff’s can get married, but it also means that gay men and lesbians who don’t look or act like them can also get married. While Mr. Backholm may consider himself to be better than LGBTQ individuals, their marriages would occupy the same societal position. Marriage equality would limit the privileges we afford to heterosexuals, fathers, gender-conforming, and discrimination. For people who have constructed their identities based on such privileges, the idea of equality must be deeply threatening.

Initiative 502

I-502 would allow people 21 and older to legally grow, sell, and buy marijuana. It has been endorsed by Legal Voice and Surge Northwest. Lillian Hewko, a Surge Northwest and an LSRJ board member, wrote about the need for 502, citing the destructive effects of drug laws on women and their children. Who’s using marijuana? In 2011, 7.8% of women 18 and older used marijuana. Who’s arrested and prosecuted for marijuana offenses though?  Predominantly people of color. Legalizing marijuana will halt Washington’s racialized arrests and prosecutions, thereby allowing families to remain intact and protecting women from the dangers of incarceration.

I voted for President Obama and for Referendum 74 and for Initiative 502. I’m hoping that on Tuesday Washington State announces to the world that equality trumps privilege.

The following are the second part of condensed remarks given by Law Students for Reproductive Justice Fellow Laura Nixon on October 6, 2012 at William & Mary School of Law’s Reproductive Justice Symposium, sponsored by their Initiative on Gender, Sexuality, and the Law. Read the first part here.

Now, I want to turn to addressing some specific barriers to reproductive justice for transgender people. I want to ground this conversation in the reality that transgender people have sexual partners who are men or women  – and that when we make blanket assumptions about sexual behavior based on gender identity and sexual orientation, we may miss reproductive health issues that are important to members of our community.

The National Center for Transgender Equality has created an excellent fact sheet showing us some of the important reproductive healthcare issues for transgender people. Foremost of these issues is how often transgender people are denied healthcare by providers outright – in national surveys, somewhere between 19 to 27 percent of transgender people report having this experience.  Related to refusal of care, is how often transgender people must educate their healthcare providers about appropriate clinical care and the paucity of adequate information about sexual health available to transgender people.  With regard to reproductive health, many transgender men who have sex with men report being more concerned about unintended pregnancy than sexually transmitted infections, even as they may be at high risk for both.  Additionally, requirements that people undergo sex reassignment surgery before being allowed to change the gender marker on their identity documents (such as driver’s licenses or birth certificates) essentially requires that they be sterilized in order to obtain these correct documents – which should be a profound concern for LGBT and reproductive justice advocates.

With respect to the experiences of transgender people, an important question to ask is: are our language choices in the reproductive health, rights, and justice movements drawing people in or are we pushing people out? In terms of reproductive health care, Dean Spade, a trans legal scholar and activist has proposed some ideas about how anyone working in the health field can change the language they use, so that transgender people know that their needs are being considered, met, and welcomed. In terms of reproductive rights and justice movement-building, we have heard a lot about the “war on women” over the past year, given the number of unprecedented legislative attacks on reproductive freedom.  Sometimes in these discussions, we may have heard people say something to the effect of “Only people with vaginas should be deciding these issues!”  This is a tongue-in-cheek way to demand that people who are most affected by these attacks on reproductive freedom be heard on these issues, and be the decision-makers in their own reproductive lives.  However, it’s worth thinking a little more deeply about how those statements may box out transgender people from the movement and communicate that they don’t have a voice in these issues because people who are women may or may not have vaginas.  In the same way the Dean Spade has suggested that we shift our language about reproductive anatomy in the healthcare setting, we must think about our language choices in reproductive rights and justice movement-building so that our work truly reflects the needs and experiences of all members of our community.

I hope the information and research that I have shared today shows us why harmful restrictions on contraception and abortion care affect LGBT people and how we can build healthcare systems and movements that are really responsive to the reality of LGBT peoples’ sexual and reproductive experiences.  Our LGBT rights and reproductive health, rights, and justice movements have strong  – not just theoretical – connections.  Let’s continue to work together to build a better world!

The following is part one of condensed remarks given by Law Students for Reproductive Justice Fellow Laura Nixon on October 6, 2012 at William & Mary School of Law’s Reproductive Justice Symposium, sponsored by their Initiative on Gender, Sexuality, and the Law. Stay tuned for part two tomorrow!

The National Center for Lesbian Rights has been concerned about issues of reproductive health and rights since our founding – and we are grateful to the reproductive justice movement for developing new frameworks to think about issues at the intersection of reproduction and sexuality.  Reproductive justice is the right to have children, the right to not have children, and the right to parent the children we have. In fact, the right to have children and to parent the children formed the basis of the founding of the National Center for Lesbian Rights. We were founded in 1977 because many lesbian mothers were losing custody of their children because of their sexual orientation.  Seeing this desperate need, Donna Hitchens – a law student like many of you here today — decided to start the Lesbian Rights Project which eventually grew into the National Center for Lesbian Rights.

My presentation today will touch on the right to have children and to parent the children we have.  I will directly address the right not have children, and why issues of access to contraception, emergency contraception, and abortion care have a big impact on the LGBT community – issues that has been raised by a number of activists and organizations working in these two movements.  Then, I will describe some specific barriers to reproductive justice for transgender people, and ask us to consider how our LGBT rights movement and reproductive justice movements can be stronger allies in our fights for social change.

The right to have children encompasses situations that LGBT people are already, tragically familiar with — discriminatory state adoption statutes, courts that fail to recognize non-biological parents as full and equal parents, and access to affordable reproductive technologies.  The right to have children also requires us to consider issues we may believe are outside of LGBT rights, but also implicate the right to have children, such as the effect of family caps on women in poverty. Family caps impact children in poverty by denying them critical support for their health and well-being – and may have the effect of incentivizing abortion for poor women subject to this policy.  It is a profound reproductive injustice for coercive state policies to force people to make these kinds of decisions about having children.

The right to parent the children we have includes if and how same-sex parents are placed on the birth certificates of their children, access to second-parent adoptions, how these parental rights travel across state lines, and how parental rights play out in the case of separation or divorce.  The right to parent the children we have also includes combating how the child welfare system systemically punishes poor women of color struggling to raise their children and the devastating impact of child welfare system and immigration, where it has recently been revealed that more than 5,000 children have had the traumatic experience of being placed into foster care while their parents are subject to deportation proceedings.

The right not to have children – access to contraception, emergency contraception, and abortion care – are the focus of my presentation today.  The LGBT rights movement and the reproductive rights and justice movements have strong  – not just legal and theoretical – connections to one another in this area for several reasons that law professor Ruthann Robson has expertly identified in this op-ed.  First, there is a devastating prevalence of rape and sexual assault in the United States, which includes an incredibly high number of lesbians who are raped or sexually assaulted in their lifetimes. Secondly, our sexual identity may not always align with our sexual behavior.  For example, surveys have consistently shown that many lesbians have a history of sexual contact with men, and that in many of those encounters, no condom was used, thus increasing the likelihood of an unintended pregnancy.  Finally, public health research has shown us that queer youth are uniquely susceptible to unintended pregnancy.  In fact, several studies have documented that young lesbians are two to ten times more likely to become pregnant than their heterosexual counterparts for a number of reasons that speak to how vulnerable queer youth are to the inadequacies of abstinence-only sex education, sexual abuse and/or substance abuse, homelessness, and the kind of surveillance and harassment that may lead young lesbians to have unprotected heterosexual sex in order to hide their sexuality.

**Laura’s remaining remarks, detailing barriers to reproductive justice for transgender individuals, will be posted tomorrow.**