Trans reproduction: Continuity, cis-normativity, and trans inequality in law

Abstract

In recent years, increasing numbers of jurisdictions are abolishing sterilization requirements for legal gender recognition and are introducing self-declared change of legal gender. The aboli- tion of this requirement leads to a change in the reproductive capacities of legal men and legal women, enabling legal men to become pregnant and to give birth, and legal women to beget children. The change in the reproductive capacities of the legal genders leads to biopolitical questions about how states do and should govern trans reproduction after decades of state- regulated sterilization. This article uses the situation in Norway to explore the regulation of trans reproduction and aims to explain why trans people’s reproductive rights are lesser than those of cis people. It first investigates the Norwegian regulation of medically assisted repro- duction and how it applies to people who have changed their legal gender. It shows that trans people are excluded from accessing medically assisted reproduction because their legal gender does not fit the conceptions of reproduction and gender under the Norwegian Biotechnology Act. Second, the article explores why trans people’s reproductive rights are limited, and argues that the law is based on cis-normative assumptions about reproduction, pregnancy, and the desire to become pregnant. Such assumptions, it is argued, permeate the law and lead to dis- crimination against trans people. The Norwegian legislature has not given any reasons as to why trans people’s reproductive rights are limited. The article demonstrates that although the sterilization requirement for legal gender recognition is abolished, the law continues to concentrate on cis realities and to restrict trans people’s ability to form a family with children.