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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.

Saturday, April 11, 2009

Transgender Constitutional Rights: How Justice Kennedy Killed the Sex Police

I will be giving a talk, titled as above, at Hampshire College on April 17 in Western Mass. The working title was “Lawrence v. Texas and the Constitutional Right to Gender Autonomy,” but that put even me to sleep, and it would be nice to get more than the usual three people to show up on a warm spring afternoon, hence the provocative title.

Justice Kennedy didn’t really kill anyone, but he did seemingly kill off police supervision of sexual morality, writing a Supreme Court opinion in the case of Lawrence v. Texas (2003) that strongly defended the sexual freedom of gay people. That same reasoning could be used to secure the right of transgender people to legal recognition of their gender identity. I’ve discussed transgender constitutional rights here before, but for my next trick, I’d like to try to apply that to a case. That’s always the hard part of law: the neat rules don’t always fit the messy facts.

I’ve constructed a fictional case, captioned “The State versus Sam Spade,” that I will discuss with the students during my talk at Hampshire. I thought I would share it here with my online family, and invite you all, as well as Hampshire students, to discuss it online.


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