Abstract
Excerpted From: Katie Eyer, Anti-Transgender Constitutional Law, 77 Vanderbilt Law Review 1113 (May, 2024) (460 Footnotes) (Full Document)
Recent years have seen an explosion of transgender equality measures, as both government and private entities have increasingly sought to affirm and protect the transgender community. School districts in states from Wyoming to Massachusetts have adopted policies seeking to support and protect transgender students. States and localities have adopted anti-discrimination measures explicitly protecting against gender identity discrimination. Courts, including most notably the Supreme Court in Bostock v. Clayton County, have held that transgender people are protected by federal, state, and local sex discrimination laws. And numerous lower courts have, over the last ten years, found that measures targeting the transgender community warrant heightened scrutiny under the Equal Protection Clause.
But at the same time, opponents of transgender equality have not been quiescent. Opposition to transgender rights has become a central issue on the conservative right, arguably overtaking traditional conservative concerns such as cutting taxes and limiting the federal government. States around the country--including even some that have trans-inclusive anti-discrimination laws--have increasingly proposed and enacted legislation that explicitly targets the transgender community, especially transgender youth. And, as relevant to this project, litigation has proliferated, seeking to use the Constitution (and related statutes such as the Religious Freedom Restoration Act (“RFRA”)) to limit or overturn transgender equality measures.
This Article is the first to comprehensively address this important phenomenon. Drawing on a survey of the last ten years of anti-transgender constitutional law claims (January 2013-June 2023), this Article provides the first comprehensive descriptive account of the burgeoning field of anti-transgender constitutional law. As that account demonstrates, litigators have increasingly sought to deploy constitutional law to limit, defend against, or eliminate entirely transgender-protective policies. The areas in which such constitutional arguments are being raised are as diverse as the arenas in which law, policy, and individual efforts have sought to protect and affirm the transgender community--ranging from individual efforts to support and protect transgender youth, to transgender-protective employer workplace policies, to federal anti-discrimination law.
The mere fact of such litigation is of course concerning for transgender rights, as it embroils supportive government entities, employers, and individuals in expensive and complex litigation, often for years at a time. Thus, even where proponents of transgender rights succeed in defeating such litigation--as they often still do--they may spend years defending against legal challenges seeking to invalidate or otherwise legally penalize their efforts. On the other hand, it is important to note that the arguments being raised by litigants in anti-transgender constitutional rights cases do still typically fail: from 2013-2023, the majority (60.0%) of study cases that resulted in final outcomes were total losses for anti-transgender litigants.
Nonetheless, a more granular assessment of anti-transgender constitutional law cases shows numerous reasons for proponents of transgender equality--and equality law more generally--to be concerned. While anti-transgender constitutional litigation was virtually nonexistent a decade ago, such claims have proliferated today, with twenty rulings in the first half of 2023 alone. Moreover, as the number of such cases has increased, so too has the number of rulings in favor of anti-transgender constitutional principles--both in terms of the absolute number of rulings favorable to opponents of transgender equality as well as in the proportion of cases resolved favorably to anti-transgender constitutional law litigants.
As importantly, a close examination of the arguments that are prevailing in such litigation reveals that the victories that anti-transgender constitutional litigators are experiencing in the lower and state courts--while still inconsistent--rely on reasoning that has the potential to profoundly affect all of anti-discrimination law. Thus, recent victories for anti-transgender constitutional litigators have included, for example, rulings that for-profit employers are prospectively immune under RFRA from hiring workers of whom they disapprove for religious reasons; that published statements of intent to discriminate are protected speech; that anti-discrimination laws are not “neutral and generally applicable” for Free Exercise purposes; and more. Notably, all of these rulings predated the Supreme Court's most recent ruling in 303 Creative LLC v. Elenis-- recognizing a constitutional right of a website designer not to design websites for same-sex weddings.
While such arguments, to date, have been adopted only by a minority of circuit, district, and state courts, they nonetheless hold reason for substantial concern. Indeed, more widely adopted, such arguments could profoundly limit the reach of anti-discrimination law--for all protected classes, from race to disability to age to sex. Recent rulings in the anti-transgender constitutional law context thus can and should serve as the “canary in the coal mine” for those who care about anti-discrimination law: they suggest the potential of a very dark future, to the extent a stable settlement of the current conflicts between speech and religion and equality cannot be achieved.
A few caveats are in order before proceeding to the substance of the analysis. First, it is important to clarify that this Article proceeds from a positional perspective: that transgender equality is an important value, and efforts to roll back or limit transgender equality measures are problematic. I recognize that this perspective will not be shared by all readers, some of whom may not value transgender equality and others of whom may place greater value on countervailing constitutional entitlements (such as an expressive or religious right to be exempt from anti-discrimination law). I hope that even for such readers, the discussion (in particular in Part III) of the truly radical implications of some of the recent anti-transgender constitutional law cases--which could imperil all of anti-discrimination law--may be of interest, and of concern.
Second, it is important to acknowledge at the outset that many of the most important rulings discussed herein can and should be the subject of broader study with respect to other protected statuses (such as race, sexual orientation, cisgender sex claims, disability, national origin, religion, and age). While I discuss the backdrop of Supreme Court law from non-transgender contexts, and at times draw on lower court rulings with respect to other protected classes as well (including some of the study cases, which at times spanned multiple protected classes), because of the origins of the study, the instant Article is necessarily incomplete in this respect. I nonetheless hope that the example of current rulings in anti-transgender constitutional law--rulings which have the potential to extend to all of anti-discrimination law--will provide a valuable window on the potential problems created by existing speech and religion doctrine in the lower courts.
Third, by focusing herein on constitutional attacks on transgender equality (as well as on constitutional-adjacent arguments, such as RFRA-based arguments), I do not mean to suggest that such constitutional attacks are the only, or even the most important form of, contemporary legal efforts to restrict transgender equality. Indeed, as I have written elsewhere, state legislation targeted at the transgender community represents a prolific and deeply concerning source of contemporary legal restrictions on transgender rights. This Article thus should be understood as just one part of broader work, by both myself and others, to map the legal landscape of contemporary attacks on transgender rights.
Finally, it is worth observing that this Article has a fundamentally different orientation than other recent work that has primarily focused on critiquing the Supreme Court's jurisprudence in this area. As described herein, the lower courts have already gone far beyond where the Supreme Court has in explicitly endorsing broad speech- and religion-based rights to discriminate. Thus, my account herein focuses far more on the limiting principles that remain available under the Supreme Court's jurisprudence--principles that could permit a settlement of contemporary disputes short of the radical positions many of the lower courts have already embraced. In doing so, I do not mean to suggest an overly optimistic account of where the Court itself may be headed but rather to point out that (contra the accounts of some other scholars) I do not believe the Court has yet gone as far as to endorse a generally available constitutional right to discriminate.
The remainder of this Article proceeds as follows. Part I, by way of background, provides a brief history of the emergence of the transgender-protective equality measures that are the object of attack in recent anti-transgender constitutional litigation. Part II takes up the study cases and provides an overview of the descriptive characteristics of such cases, including their increasing prevalence and success rates over time, as well as their contexts and claims. Part III turns to key rulings of concern in recent anti-transgender constitutional law litigation, their implications, and the ways in which they both arise from--but also have extended--the Supreme Court's existing recognition of religion- and speech-based rights to discriminate. Part IV turns to a discussion of strategies for achieving a stable settlement between speech and religion rights and anti-discrimination law. A brief conclusion follows.
[. . .]
Virtually nonexistent a decade ago, anti-transgender constitutional litigation has proliferated since 2016. Such litigation has targeted virtually every arena in which governments have sought to ensure equality for the transgender community, from anti-discrimination law, to trans-affirming school policies, to the efforts of individual teachers, judges, and social services personnel to pursue the best interests of transgender children. Although victories for those opposing transgender rights remain, to date, inconsistent, there is no doubt that the rise of such litigation is deeply troubling for the transgender community.
Moreover, as this Article has suggested, litigation targeting the transgender community ought to be of concern to all those who care about anti-discrimination law. While it is often assumed that decisions exempting entities from anti-discrimination laws on speech or religion grounds turn on rulings specific to the LGBTQ community, an analysis of such rulings in the AT context shows that they typically are based on reasoning that would equally apply to all groups. As such, the rights of every protected class--race, sex, disability, national origin, and religion itself--may be implicated by the current wave of AT constitutional cases.
This Article has suggested that all is not lost for anti-discrimination law. There are limits to the Supreme Court's current speech/religion doctrine-- limits that are important to reaffirm in both the lower courts and the Supreme Court itself. But it is also the case that government entities and litigants ought to take seriously the task of avoiding conflict with expressive and religious commitments where they can. It will likely take both affirmative efforts to defend anti-discrimination law and efforts to minimize the spheres of conflict to reach a renewed state of equilibrium with respect to the First Amendment and anti-discrimination law.
Professor of Law, Rutgers Law School. Visiting Professor of Law, University of Chicago Law School (Fall 2023).
