Litigating Trans Rights in the States

Abstract

Trans rights are under attack. Across the country, states are banning trans children and adults from gender-affirming care, forcing them into bathrooms and gender-segregated school activities that don’t align with their actual gender, and forcing them to be deadnamed and misgendered in a variety of contexts. While the U.S. Supreme Court has yet to weigh in on whether the Equal Protection Clause prohibits at least some discrimination on the basis of gender identity, trans advocates have been heartened by the Court’s ruling in Bostock v. Clayton County and early wins in federal court that have struck many of these restrictions down. But the failure to challenge these laws with state constitutional claims is a short-sighted strategy. While there are reasonable signs for optimism, whether the U.S. Supreme Court will ultimately uphold or strike down these laws remains to be seen. And even if the Court affirms that at least some discrimination on the basis of gender identity is unconstitutional at least some of the time, not all discriminatory laws will be held unconstitutional. Accordingly, regardless of whether the ultimate outcome of federal litigation is success, failure, or something in between, advocates will need another venue to pursue their claims. Not only are state courts available, but many state constitutions provide litigants with unequivocally stronger claims. While the U.S. Constitution does not contain an Equal Rights Amendment, many states do—and review gender-based discrimination under strict scrutiny. While the scope of privacy rights under the U.S. Constitution is ambiguous after Dobbs v. Jackson Women’s Health Organization, many state constitutions contain robust privacy protections that have long been more expansive than the federal right to privacy. Most state constitutions also contain many, many more rights than the U.S. Constitution does, providing advocates with more claims still. In this Article, I use the analogies of abortion-rights litigation and early gay-rights litigation to argue why state constitutional litigation and development is a necessary, complementary part of any nationwide trans legal strategy. I argue that, regardless of how federal litigation plays out, trans advocates need to start engaging with state constitutions—through both litigation and constitutional amendments. To that end, I explore what possible arguments and constitutional amendments might look like, and situate state advocacy in the context of a national strategy.

Keywords: constitutional law, individual-rights-and-liberties, Equal Protection Clause, Equal Rights Amendment, gender identity, trans

JEL Classification: K00, K19, K39