Friday, September 11, 2009

National LGBT Bar Association Panel: Constitutional Gender

The National LGBT Bar Association Conference begins today. Much interesting grist for the mill here.

I will be presenting in a panel on constitutional rights to gender autonomy today, along with three highly-regarded law professors whose work in this area is very interesting.

My presentation will center on the right to privacy, and the full-length article will be coming out this Fall in the Touro Journal of Gender, Race and Ethnicity. The title of the article is "Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence v. Texas."

Others will discuss rights to due process, equal protection, the First Amendment and question whether positing "a right to gender autonomy" is the right question in the first place.

In a nutshell, my opinion is that there is a constellation of issues that comprise a potential "right to gender autonomy," and that the "right to privacy" is the wellspring.

There are two strands of constitutional jurisprudence from which this right develops: the first is a right of self-determination of gender, based on privacy cases that promoted self-determination of private decision-making of important life choices, and the other is a right of self-identification of gender, based on other privacy cases that promoted privacy protection of sensitive information .

“The right to gender autonomy” may therefore be defined as the right of self-determination of one’s gender, free from state control, and the right to self-identify as that gender, free from state contradiction.

However, there is a problem with this idea: it's not clear how it squares with the US Supreme Court's landmark 2003 decision in Lawrence v. Texas, which found that the right to privacy protects gay relationships from being marked as criminal by the state. That case has been taken by many as meaning that the right to privacy hinges on the relationship aspect, which marks a "fundamental" right. Since being transgender involves no relationship aspect, upon what is the state intruding that would be considered private?

I started looking at this issue in my 2001 law review article, in which I suggested that there is a fundamental right to “gender autonomy” that protects people with transgender and transsexual identity. I grounded this in what was then called the “right to privacy”, an outgrowth of substantive due process. There have been significant developments in the law since then, and many commentators have discussed the possibility of a right to gender autonomy.

This article looks to review the work that has been done since that time on the issue of substantive due process as it has been discussed in regard to the right of gender autonomy, and also focusing specifically on how the groundbreaking, but widely misunderstood, 2003 decision in Lawrence v. Texas3, impacts this putative right to gender autonomy.

I suggest that my 2001 argument in favor of gender autonomy as a fundamental right, while potentially valid, has been devitalized by Lawrence. Instead, Lawrence has made a “rational basis” standard of review not only possible for the right of gender autonomy, but much stronger than an argument in favor of a “fundamental right” approach, or any attempt to mix the two.

This “heightened” rational basis, an approach that has previously been seen in equal protection jurisprudence as “minimal scrutiny with bite,” clarifies the ambiguities and opacity that have plagued interpretation of Lawrence. It sidesteps the problems created by a judiciary that is looking to avoid recognition of new “fundamental rights.”

If this is correct, then the emphasis of advocate of gender autonomy should not be on trying to prove the existence of a “fundamental right,” but on trying to identify the putative state interests that can be asserted in favor of gender regulations that refuses to recognize sex reassignment, and explaining how they are either illegitimate or have insufficient rational nexus to the law.

Legal and social advocates for a right of gender autonomy should further pursue detailing the factual record and historical analysis that demonstrates the long history of legal and social gender autonomy.

You can download the materials for the session in a zip file by clicking here.