A Bare Desire to Harm: Transgender People and the Equal Protection Clause

79 Pages Posted: 19 Nov 2015 Last revised: 4 Nov 2016

Kevin M. Barry

Quinnipiac University - School of Law

Brian Farrell

Sidney L. Gold & Associates, P.C.

Jennifer Levi

Western New England University School of Law

Neelima Vanguri

Sidney L. Gold & Associates, P.C.

Date Written: November 16, 2015

Abstract

The U.S. Supreme Court’s decision in Obergefell v. Hodges establishing marriage equality for same-sex couples marks a major shift in recognizing gay, lesbian, and bisexual people as a central part of the fabric of American society. Obergefell also marks the passing of the torch from “LGB” to “T”; the next civil rights frontier belongs to transgender people, for whom key barriers still remain. In January 2015, a transgender woman filed an equal protection challenge to a provision of the Americans with Disabilities Act (“ADA”), which explicitly excludes several medical conditions closely associated with transgender people. In support of this challenge, lawyers for the plaintiff (and co-authors of this Article) advance a novel argument: transgender people are a “suspect” or “quasi-suspect” class entitled to heightened scrutiny. The authors further argue that the ADA’s transgender exclusions are unconstitutional no matter what level of scrutiny applies because moral animus against transgender people is not a legitimate basis for lawmaking. This equal protection challenge paves the way for the extension of disability rights protection to transgender people under the Rehabilitation Act, Fair Housing Act, and state anti-disability discrimination laws that mirror the ADA. It also marks a new break for equality law — reaching far beyond disability rights to all laws that single out transgender people for disparate treatment. This challenge also informs the broader theoretical debate over the relationship between identity and impairment, and diagnosis and discrimination.

Keywords: transgender, strict scrutiny, heightened scrutiny, suspect class, equal protection, disability, DSM, Obergefell, Windsor, gender identity, gender dysphoria

JEL Classification: K31

Suggested Citation

Barry, Kevin M. and Farrell, Brian and Levi, Jennifer and Vanguri, Neelima, A Bare Desire to Harm: Transgender People and the Equal Protection Clause (November 16, 2015). 57 B.C. Law Rev. 507 (2016); Western New England University School of Law Legal Studies Research Paper No. 15-14. Available at SSRN: https://ssrn.com/abstract=2691846

Kevin M. Barry (Contact Author)

Quinnipiac University - School of Law ( email )

275 Mt. Carmel Ave.
Hamden, CT 06518
United States

Brian Farrell

Sidney L. Gold & Associates, P.C. ( email )

1835 Market Street, Suite 515
Philadelphia, PA 19103
United States

Jennifer Levi

Western New England University School of Law ( email )

1215 Wilbraham Road
Springfield, MA 01119
United States

Neelima Vanguri

Sidney L. Gold & Associates, P.C. ( email )

1835 Market Street, Suite 515
Philadelphia, PA 19103
United States

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