Editor's Note: This piece was written prior to The Georgia General Assembly's hearing for HB 441, where the bill received no vote. The Amplify Georgia Collaborative, Georgia's reproductive freedom advocacy coalition, successfully mobilized community members, healthcare providers, lawyers, and researchers who gave over two hours of testimony attesting to the potential harm the bill could catalyze. According to the Feminist Women's Health Center on Instagram, this victory is a major win for the movement, but advocates remain vigilant, as the bill is likely foreshadowing for future attempts to completely ban abortion, criminalize providers and pregnant people, and eliminate access to IVF care. The coalition continues to advocate for the passage of The Reproductive Freedom Act.
INTRODUCTION
The Trump administration's January 2025 Executive Order (EO) on "Defending Women from Gender Ideology Extremism and Restoring Biological Truth to the Federal Government" and it's February 2025 companion "Keeping Men Out of Women's Sports" is more than a calculated attack on trans existence; it is a strategic escalation in the long history of racialized reproductive control that undergirds Western colonial projects. Disguised as the restoration of "biological truth," the EO's rigid sex definitions—classifying "females" as those who "at conception, [belong] to the sex that produces the large reproductive cell" and "males" as those who "at conception, [belong] to the sex that produces the smallest reproductive cell"—do not simply distort science; they weaponize it to justify State violence.
While some have dismissed the EO's definitions as biologically incoherent—given that early fetal development renders all genitalia phenotypically similar (and female)—this EO, and the strategic assault it is a core component of, are not clumsily or carelessly written.
By codifying fetal personhood into federal law, the administration extends the state's authority over bodily autonomy, targeting those already most vulnerable to its violence: Black, Indigenous, and other racialized communities whose reproductive capacities have long been sites of colonial discipline. The EO is not just an attack on trans people; it is a broader project of gendered racial governance, reinforcing U.S. imperial hegemony through the policing of bodies and social relations.
A LEGAL HISTORY OF FETAL PERSONHOOD
Fetal personhood laws—policies that grant fetuses, embryos, and fertilized eggs the same legal rights as born persons—are not about protecting life; they are about controlling it. These laws are rooted in the long history of racialized reproductive governance in the United States, emerging as tools to determine whose bodies are sovereign and whose are state property. Controlling the terms of Black and Indigenous reproduction—and deciding the fate of Black and Indigenous children—ensured the continuation of a labor force and an economic system built on the afterlives of enslavement and dispossession.
This was never a neutral project. Black people, cast as a permanent slave class, were never recognized as fully human but rather the vessels of both reproduction and the forms of forced labor necessary to build Empire. Fetal personhood, in this context, is therefore not a benign legal abstraction—it is a technology of racial and gendered subjugation. As legal scholar Dorothy Roberts argued in Killing the Black Body, anti-abortion, anti-contraception, and fetal personhood laws have always functioned as mechanisms to keep Black reproduction under state and private control. Their rise after the Civil War—precisely when Black people supposedly became "free"—was no coincidence. These mechanisms were not merely about curbing population growth; they were essential to maintaining white supremacist and capitalist interests, ensuring that Black life remained a commodity, no matter how "free" Black people were or are.
The Trump administration's fixation on "restoring biological truth" is not only about erasing trans identities, but reinforcing a colonial, patriarchal order. Trans men, perceived as rejecting pregnancy in favor of manhood, are seen as betraying womanhood; while trans women, perceived as giving up impregnation for womanhood, are viewed as betraying manhood. This logic, rooted in transphobia, frames both as threats to a fascist vision of gender and reproduction, while it, at the same time, criminalizes trans pregnancy and frames it as deviant and immoral.
Gender essentialism does not define who is "really" a woman or a man out of a desire to validate identity—it is a technology of governance, wielded in service of racial capitalism. As historian Jules Gill-Peterson noted in A Short History of Transmisogyny, the colonial pathologization of gender nonconformity—whether in the British criminalization of hijras in India or the forced assimilation of Two-Spirit people in Indigenous communities—was never separate from the regulation of reproduction. It was an imperial means of violently ordering populations and extracting value from racialized bodies. The Trump administration continues this legacy by using gender essentialism as a tool of racial governance.
Black trans and gender-nonconforming bodies, in particular, disrupt this violent order. As Saidiya Hartman observed, Blackness has long been bound to subjugation, with gender functioning as a weapon of discipline: "The erotics of terror in the racist imaginary take hold of and inhabit the captive body, indifferent to the categories male and female" (Scenes of Subjection, 139). To exist outside imposed gender norms is to unfix gender from its colonial and white supremacist anchors. As Black Studies scholar Marquis Bey wrote, such an unfixing generates "mutinous subjectivities" (Black Trans Feminism, 3), opening possibilities beyond the constraints of gendered racial order. The Trump administration's invocation of fetal personhood is not merely a culture war tactic; it is a continuation of historical efforts to extinguish resistance to the fascist order of the Global North. Gender preoccupies the Trump administration because it is a site of insurgency—one that threatens to unravel the settler-colonial project it seeks to preserve.
By reasserting fetal personhood, the state deepens the commodification of life, ensuring that only certain bodies are recognized as fully human, while others remain subject to violence, regulation, and death.
A CASE STUDY IN FETAL PERSONHOOD: ALABAMA
On Feb. 16, 2024, the Alabama Supreme Court issued a first-of-its-kind ruling granting stored embryos the same legal protections as born children. This decision marks one of the latest escalations in the U.S. anti-abortion movement's long-term strategy, shifting fetal personhood from the fringes of legal discourse to the center of reproductive politics.
The modern conception of fetal personhood gained momentum in the 1970s and 1980s, fueled by the "crack baby" moral panic—a pseudo-scientific, racialized, and gendered smear campaign that disproportionately targeted poor Black women, casting them as reckless reproducers whose pregnancies warranted state intervention. Since 1973, at least 45 states have prosecuted pregnant people for prenatal substance use. These early cases which laid the groundwork for fetal personhood to be weaponized across criminal and family law, cracked open the door to increased surveillance and legal prosecution, and soon, states began kicking it off its hinges.
In 1997, the South Carolina Supreme Court ruled that a "viable fetus is a 'child'" under the state's child abuse and endangerment statute, enabling prosecutors to charge a woman for using cocaine during her third trimester. In 2015, Alabama prosecutors weaponized the state's 2006 chemical endangerment law to criminalize pregnant people for prenatal substance use—effectively expanding the statute to establish fetal endangerment as a prosecutable offense. In 2020, the Oklahoma Court of Criminal Appeals ruled that pregnant people could be charged with felony child neglect for substance use during pregnancy, even if their babies were born healthy—further cementing fetal personhood as a mechanism of criminalization. As Dorothy Roberts argued in Killing the Black Body, laws punishing drug use during pregnancy were never about protecting fetuses—they were about controlling Black, Indigenous, and poor women's reproduction. These prosecutions are not anomalies, they are part of a racialized and gendered strategy to police reproduction and eliminate forms deemed undesirable by the state.
While these legal frameworks harm many, they are particularly dangerous for trans people who can become pregnant. As gender-affirming care is increasingly criminalized, fetal personhood is poised to align with the broader state project of eradicating trans life. Following the current legal trajectory, the very act of transitioning—especially medical transition—is being reframed as an attack on reproduction and in turn children, mirroring cocaine and heroin in their weaponization to destroy Black, Brown, and poor families. This same logic will be applied to trans people, where transness itself is framed as child abuse and neglect. As a result, queer and trans families will be targeted and separated by CPS and similar state and local agencies based solely on identity and family composition, with no other justification needed. Trans pregnancy becomes a contradiction: both hyper-visible and erased, deemed deviant and perverse, yet also an inevitable consequence of a system that coerces bodies into rigid, state-sanctioned gendered and reproductive roles.
Alabama's expansion of fetal personhood into civil law exposes the growing scope of state-driven reproductive control—not merely to restrict abortion, but to regulate, surveil, and suppress any form of reproduction that falls outside cisheteronormative mandates. For trans men, who are often rendered invisible in service of transmisogyny and transmisogynoir, this may begin with erasure but it similarly ends at eradication. Their bodies are marked as threats—hyper-visible when framed as dangers to state order, but invisible as subjects of reproductive autonomy. Alabama's ruling is not just about embryos. It is about deepening the state's ability to determine who is allowed to exist and under what terms.
THE TRUMP ADMINISTRATION'S EO AND WHAT'S TO COME.
Fetal personhood, under the Trump Administration, extends and intensifies the state's ongoing project of reproductive governance, deepening the legal and social forces that regulate reproductive autonomy. By enshrining fetal personhood in federal policy, the Executive Order reaffirms the commodification of reproduction, ensuring that only certain forms—those aligned with cisgender, heteronormative ideals—are deemed legitimate. This mirrors the historical regulation of Black and Indigenous reproduction, where the state determined who could bear children, under what conditions, and with what degree of surveillance or state-sanctioned violence.
The state's obsession with gender and reproduction reflects a desperate, insidious effort to preserve a social order increasingly perceived to be "slipping away" as the U.S. becomes more racially diverse and more openly queer and trans. Jules Gill-Peterson argued in A Short History of Transmisogyny, "the global trans panic was not only about the general violence waged against populations now trans-feminized by the state; the panic also inaugurated the killability of trans women on an interpersonal scale." This panic is not just ideological—it materializes as legal and extralegal violence, targeting trans bodies and reproduction. In the current climate, trans reproduction is framed as both unnatural and a direct threat to the state's reproductive order. The EO expands the logic that criminalized Black mothers during the War on Drugs, positioning trans reproduction and trans parenthood of any variety as deviant and pathological. Within this framework, gender-affirming care—already under attack—is increasingly framed as dangerous to fetal and child development and, by extension, to the moral fabric of the nation. The Trump Administration's invocation of fetal personhood, through executive order, extends a broader strategy of reproductive and gendered surveillance, reinforcing the state's power to determine who is recognized as fully human and who is marked for elimination.
As for what's to come, HB 441 in Georgia signals a chilling escalation of the Trump Administration's federal federal fetal personhood agenda, as a proposed state law with far-reaching consequences. By defining personhood at fertilization, HB 441 lays the groundwork for civil and criminal penalties against people who experience miscarriages or abortions, as well as people seeking fertility treatments like IVF.
The bill also grants prosecutors the power to charge patients and providers with serious crimes, including assault, battery, and even homicide—further transforming medical care into a dangerous legal minefield. Like the Trump Administration's EO, HB 441 represents a direct attack on the ability of individuals to control their reproductive decisions, effectively forcing Georgians into compliance with an increasingly conservative, authoritarian state's imposed ideals of reproduction and family.
It also reflects the state's ongoing control over poor, Black and Indigenous people of color's bodies, whose reproduction has long been a site of state surveillance and discipline. In response, the Feminist Women's Health Center issued a call to action for reproductive health, rights, and justice groups to converge at the Georgia State Capitol on March 26 to push back against HB 441. This mobilization is not about one piece of legislation—it's about fighting the growing tide of state-enforced reproductive and gendered control that will criminalize all exercise of bodily autonomy—from pregnancy and pregnancy endings to gender-affirming social and medical transitions.
CONCLUSION
The Trump administration's Executive Order on fetal personhood is not merely a legal maneuver—it is part of a broader, strategic effort to regulate, surveil, and control marginalized bodies. At the heart of this effort is the erosion of bodily autonomy for trans people, a legal and social project grounded in centuries of regulating and criminalizing Black, Indigenous, and marginalized bodies. These bodies, consistently labeled as "unfit" or "dangerous" by the state, challenge cisgender, heteronormative norms and resist the very structures designed to dominate them. Their refusal to conform to rigid categories makes Black trans and gender-nonconforming people particularly threatening to state power.
In our struggles for reproductive justice—especially in the face of Trump-era executive orders and the growing influence of fetal personhood laws—it is crucial to center Black Transfeminist analyses. These frameworks, shaped by the legacies of colonialism and the ongoing resistance of those racialized and (trans)gendered by it, provide a vision of a world beyond the state's regulatory grasp. A world where gender is freed from oppressive systems, and where acts of transgression are not only tolerated but celebrated as revolutionary acts. This is the world we must fight for.