Abstract
Over the course of the last three decades, gender identity anti-discrimination protections and other transgender-supportive government policies have increased, as government entities have sought to protect and support the transgender community. But constitutional litigation by opponents of transgender equality has also proliferated, seeking to limit or eliminate such trans-protective measures. Such litigation has attacked as unconstitutional everything from laws prohibiting anti-transgender employment discrimination to the efforts of individual public school teachers to support transgender teens.
This Article provides the first systematic account of the phenomenon of anti-transgender constitutional litigation. As described herein, such litigation is surprisingly novel: while trans-protective measures date back much further, anti-transgender constitutional litigation was virtually non-existent prior to 2016. Moreover, as late as 2018, the few victories in such cases were almost always either temporary, or predicated on arguments with only limited application. In contrast, the most recent wave of anti-transgender constitutional litigation has seen increasing success in invalidating or limiting transgender equality measures, based on increasingly broad and potentially impactful rationales.
These findings raise significant questions, both for the transgender community, and for those who care about broader anti-discrimination law. They suggest that even at a time when the transgender community is achieving important gains, those gains are being simultaneously eroded by the constitutional claims of transgender equality opponents. Moreover, the reasoning in some of the recent rulings in anti-transgender constitutional cases ought to be of substantial concern to all groups protected by anti-discrimination law.
Indeed, the rulings in some anti-transgender constitutional law cases provide a troubling vision of what the future of speech and religion-based claims could portend. Emboldened by the recent victories, litigants have become increasingly aggressive—and lower courts increasingly creative—in arguing for the constitutional limitation of equality rights. While such arguments have been adopted by only a limited number of courts to date, they could—if adopted more widely—form the basis for the constitutional limitation or invalidation of broad swaths of modern anti-discrimination law.