Transgender Constitutional Law

Abstract

Litigation addressing the constitutional rights of the transgender community has exploded in the last decade. This litigation revolution has fundamentally reshaped the constitutional landscape with respect to the equality and liberty rights of transgender litigants, recognizing the transgender community as constitutionally protected subjects entitled to meaningful rights. And yet—because this litigation revolution has occurred in the lower and state courts—it has remained comparatively invisible from the perspective of the legal literature.

This Article provides the first systematic account of this constitutional law revolution in transgender rights. Based on an analysis of the last five years (2017-2021) of transgender constitutional rights litigation, it offers a comprehensive descriptive account of contemporary constitutional transgender rights litigation in the Equal Protection and Due Process contexts. As that analysis reveals, recent transgender rights litigation has resulted in important and consistent victories for transgender constitutionalism in the lower and state courts. Indeed, recent constitutional decisions are close to unanimous in their treatment of the transgender community as warranting meaningful constitutional protections.

This revolution in transgender constitutional rights is important in its own right—indeed it is likely to be critical at a time when a wave of anti-transgender legislation is currently sweeping the country. But it is also important for the ways it calls into question the conventional wisdom of constitutional law as a field. As this Article elaborates, contemporary transgender constitutionalism challenges many of the assumptions of constitutional law scholars, including assumptions regarding the death of suspect class analysis under Equal Protection doctrine, the impossibility of new fundamental rights under the Due Process clause, and the weakness and futility of rational basis review. It thus highlights the importance of attending to the constitutional law of the lower federal and state courts—not only that of the United States Supreme Court.

Note: Data and Methodological Appendices for this Article are available at https://ssrn.com/abstract=4173207.

Keywords: Constitutional Law, Transgender Rights, Gender Identity, Equal Protection, Due Process