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This is not legal advice, which can only be given by an attorney admitted to practice law in your jurisdiction after hearing all of the facts and circumstances in a particular case.

Wednesday, March 25, 2009

Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas

I've been thinking a lot lately about the relationship between gender identity and sexual orientation. I just finished an article that is coming out in the Touro Journal of Race, Gender and Ethnicity. That's the title of the article above. Pretty fancy, eh? They like those fancy titles in professorland. This has been keeping me pretty busy, and thank goodness it's done.

The law specifically ties gender identity to physical sex. Even those few states that allow a change on the birth certificate don't necessarily recognize that change, or, they impose restrictions, when it comes to bathrooms, homeless shelters, drug treatment centers, domestic violence shelters, prisons, sports, youth, foster care group homes, transgender parent custody or visitation of children in a divorce, adoption, health care, insurance coverage, employment discrimination, marriage, and military service laws.

The law has imposed similar restrictions on gay sexuality, and in fact it was a crime in over two dozen states. That is, until 2003, when the Supreme Court said that such laws violated the "due process" clause of the U.S. Constitution in Lawrence v. Texas.

Being gay is now protected by the U.S. Constitution. So I've been thinking: can we use this due process clause to loosen the chokehold that the law has on transgender people?


1 comment:

Atty. Eric P. Pitsch said...

I was surfing the net and came across your site. After reviewing your website I thought I'd send you a case of mine in Wisconsin that represents a step forward in progress for the Transgendered community.

Sierra Brousard v. Concepts Unlimited, Inc., D.B.A. Park Central Night Club. Sierra was denied entrance twice because of her status as a transgendered person. She brought a lawsuit and ended up forcing settlement against the club wherein they were forced to admit the discrimination and accept judgment against them.

See http://wcca.wicourts.gov/index.xsl to research the case and http://www.postcrescent.com/article/20091024/APC0101/910240499/Transgendered-woman-reaches-settlement-with-Park-Central-over-discrimination for the news article.