(No) State Interests in Regulating Gender: How Suppression of Gender Nonconformity Violates Freedom of Speech

Jeffrey Kosbie

Northwestern University - Department of Sociology; Northwestern University - School of Law

September 3, 2012

19 Wm. & Mary J. Women & L. 187-254 (2013)

Despite limited growth in legal protections for transgender people, dress and appearance are largely treated as unprotected matters of personal preference. In response, lawyers and scholars argue that dress and appearance are intimately connected to the expression of identity. Nonetheless, courts have generally deferred to the government’s proffered justifications for these laws.

This article refocuses on the government’s alleged interests in regulating gender nonconformity. Using a First Amendment analysis, the article reveals how seemingly neutral government interests are used to single out conduct because it expresses messages of gender nonconformity. This approach avoids impossible questions about the subjective intent of the individual to express their identity.

Drawing on social constructionist theories of gender, this article establishes that dress, appearance, and other behavior communicate the social meaning of gender and should be understood as communicative under the First Amendment. When the state singles out conduct because it expresses gender nonconformity, the state’s interests are related to the suppression of a message. This violates freedom of speech under the governing O’Brien doctrine. Testing the theory against actual cases involving government employment, child custody, and restroom access, the article recognizes legitimate government interests in privacy, safety, and efficient workplace environments. The article, however, argues that under present doctrine on freedom of speech, the government may not suppress gender nonconformity as the means of achieving these ends.

Number of Pages in PDF File: 68

Keywords: Transgender, Gender, Free Speech, Identity, Dress, Appearance

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Date posted: September 13, 2012 ; Last revised: March 25, 2013

Suggested Citation

Kosbie, Jeffrey, (No) State Interests in Regulating Gender: How Suppression of Gender Nonconformity Violates Freedom of Speech (September 3, 2012). 19 Wm. & Mary J. Women & L. 187-254 (2013). Available at SSRN: http://ssrn.com/abstract=2145632

Contact Information

Jeffrey Kosbie (Contact Author)
Northwestern University - Department of Sociology ( email )
1810 Chicago Ave
Evanston, IL 60208
United States
Northwestern University - School of Law ( email )
375 E. Chicago Ave
Unit 1505
Chicago, IL 60611
United States
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