Protecting the Most Vulnerable: Pursuing a Clear and Functional Equal Protection Framework for Transgender Youth

Abstract

The Supreme Court has never addressed whether sexual minorities are entitled to heightened scrutiny when laws and state policies single them out and disparately impact them. The Court has often found ways to avoid answering that question directly or simply refused to address the appropriate framework in which to analyze the cases. With this backdrop, numerous circuit courts have begun to answer this question in light of a common fact pattern. School districts in three separate circuits have enforced policies requiring transgender students to use the bathroom correlating with their biological sex or a single-stall bathroom. These policies have subjected these students to isolation, ridicule, and embarrassment. Outside of these policies, transgender youth are already the most likely demographic to commit suicide. Thus, it has never been more important for the courts to develop a cogent, stable, and constitutional framework to ensure this incredibly vulnerable population receives the equal protection of laws promised them by the Fourteenth Amendment. There are three primary paths that courts have taken in analyzing this discriminatory pattern. First, the policies are unconstitutional because they classify based on sex. This takes the view that these discriminatory actions are simply understood as common sex discrimination. Second, these policies are unconstitutional sex discrimination because they are founded on, and enforce, outdated sex stereotypes. This anti-stereotyping analysis provides a deeper understanding of the underlying animus that transgender students face. Third, that this discrimination is subject to intermediate scrutiny not because it is some form of sex discrimination, but because transgender people are members of a quasi-suspect class under the Frontiero factors analysis. This approach firmly roots the analysis in clear constitutional precedent and provides the strongest social message of equality and affirmative acceptance.

Keywords: Equal Protection, Transgender Rights, Fourteenth Amendment, Constitutional Law, Sex Equality, Gender Discrimination