Ellie Holzman, JD Anticipated May 2023, Law & Public Policy Scholar
There are currently over 385 anti-LGBTQ bills that have been introduced at the state level across the country. Ninety of these bills would prevent transgender youth from accessing age-appropriate gender affirming care, two of which have already become law. These proposed laws also target drag performances, bathroom access, and place limits on classroom curriculums pertaining to LGBTQ+ history. These bills represent a larger movement against the LGBTQ+ community across the country that seeks to erase queer history and prevent queer people from accessing basic human rights. During a time when it seems that the LGBTQ+ community is experiencing such targeted and severe attacks from lawmakers across the country, one might wonder how any of this is legal, or if there are any legal remedies to make it stop. The long answer to that, unsurprisingly, is complicated, and requires a deeper dive into constitutional law and equal protection jurisprudence. However, the short answer is that the Supreme Court likely has the power to find that explicitly anti-LGBTQ laws are unconstitutional based on recent precedent. In fact, the Supreme Court’s treatment of gender-classifications, as well as its acknowledgment of the inherent connection between sex, sexuality, and gender identity presents an opportunity to find new protections for the LGBTQ+ community. Of course, whether the Court will choose to do so is an entirely separate question.
One possible legal strategy for challenging these types of anti-LGBTQ laws would be to argue that sexual orientation and gender identity are protected classes that should be given intermediate scrutiny under the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause holds that “no state shall make or enforce any laws…[that] deny to any person within its jurisdiction the equal protection of the laws.” Ratified in 1868 as part of the Reconstruction Amendments, the Equal Protection Clause was originally intended to protect Black people from state-sanctioned discrimination. However, since then, the Supreme Court has steadily evolved its interpretation of the Equal Protection Clause and has considered what level of scrutiny various classifications between and among individuals should be required to satisfy. The Court has held that any race-based classification should be required to meet the test of strict scrutiny, gender and illegitimacy classifications should be subject to intermediate scrutiny, and everything else should be subject to rational basis review. The higher the level of scrutiny, the less likely that the classification will be upheld. In determining what level of review a certain class should get, the Court first determines whether it is a suspect or quasi-suspect class. This requires the Court to consider whether the class is a “discrete and insular minority,” has experienced a history of discrimination, is politically powerless, and is united by an immutable characteristic, and the relevancy of the trait in participating and contributing to society.
The Supreme Court has not found that sexual orientation or gender identity are suspect classes that deserve intermediate scrutiny or strict scrutiny. However, the Court has held that gender classifications receive intermediate scrutiny. In Craig v. Boren (1976), the Supreme Court subjected a gender classification to intermediate scrutiny for the first time. It found that gender is a quasi-suspect class because “a person’s gender has no relevance to his or her ability to contribute to society, and because gender, determined at birth, is an immutable characteristic of that person’s being.” More recently, in a surprising opinion from Justice Gorsuch, the Supreme Court found in Bostock v. Clayton County (2020) that the term “sex” includes sexual orientation and gender identity for purposes of Title VII discrimination claims. The Court noted that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” Given the Court’s use of intermediate scrutiny for gender classifications, as well as its recognition that sex, sexual orientation, and gender identity are inherently linked, the Bostock decision seemingly presents an opportunity for sexual orientation and gender identity to trigger heightened scrutiny under the Equal Protection Clause.
Yet, the Court has failed to do this, and it is unlikely that it will do so any time soon. When looking at the list of factors the Court must consider when deciding if a certain group should be classified as a suspect-class, the immutability of the characteristics may present the greatest challenge. After all, there is vast evidence to support the fact that the LGBTQ+ community has faced a history of discrimination and are at least somewhat politically powerless. Proving that sexual orientation and gender identity is an immutable characteristic is more difficult, especially in light of the increasingly accepted viewpoint that these things are fluid and can change throughout someone’s life. In Obergefell v. Hodges (2015), the Supreme Court decision that recognized the constitutional right to same-sex marriage, the Court discussed whether sexual orientation is an immutable characteristic. In the end, it found that “psychiatrists and others [have] recognized that sexual orientation is both a normal expression of human sexuality and immutable.” While the Court’s determination that sexual orientation is immutable was the legally superior outcome, it actually conflicts with more widely held views among the LGBTQ+ community that sexual orientation and gender identity is fluid. As conversations surrounding theories of sex, sexuality, and gender evolve over time, younger generations are approaching queerness as more a fluid spectrum, rather than always being a distinct identity that never changes. There is an argument to be made, however, that just because one’s sexuality and/or gender identity may change and evolve over the course of their life does not mean that their core identity as a queer person is something other than an immutable characteristic that they were born with.
In the end, these conversations are complicated, and each person’s experience with their queer identity is unique to them. As such, finding that sexual orientation and gender identity should be granted heightened scrutiny would require the current Court to have a much better understanding of sex, sexuality, and gender identity than it likely has, as well as a willingness to listen to the LGBTQ+ community and have a nuanced perspective on queerness. The reality is, the Court has the tools to make this happen, but the current political makeup of the Supreme Court makes it highly doubtful that they will utilize them. A willingness to provide new constitutional protections for sexual orientation and gender identity would require the Court to actually care about the safety and wellbeing of the LGBTQ community, and this is simply not the case.