Trans] Boy Meets Worldd: A Comparison of State Anti-discrimination Laws and First Amendment Protections for Gender Identity and Expression

Abstract

In accepting the Arthur Ashe Courage Award at the 2015 EPSYS, Caitlyn Jenner described her personal transition and experience learning about transgender issues as “eye-opening, inspiring [and] frightening.” In her television series, I Am Cait, Jenner strives to educate the public about transgender problems. Jenner is one of many who have taken on this Herculean feat to bring light to the discrimination transgender people face. For scholars, however, questions about trans-individuals’ legal rights and protections remain. Uncertainty regarding protections to combat inequality and discrimination against transgender individuals arises because the federal government has left a void. In an effort to fill some of those gaps, states have enacted laws pertaining to transgender issues, but state approaches vary considerably. Some state anti-discrimination disability statutes only apply to people suffering from gender dysphoria. Conversely, other states explicitly exclude coverage for gender dysphoria from their disability discrimination statutes. This Note explores how the First Amendment may protect one’s gender expression and how states have approached transgender rights through legislation. Subsequently, this Note lays out the basic tenants of First Amendment jurisprudence and the intersection of gender expression. This Note also compares three states’ approaches to the rights of transgender individuals in public schools and employment settings. Specifically, it describes transgender discrimination protections, or lack thereof, in three states: Rhode Island, New Hampshire, and Indiana. Additionally, this section of the Note comments on each state’s policies first for transgender employees and then for transgender students in public schools.This Note ends with recommendations for other states considering how best to protect their transgender residents. The recommendations briefly consider where the case studies succeeded, where they failed, and how they need to continue. Moreover, the final portion of this Note calls for federal protections, at least for transgender employees who are discriminated against because of their real or perceived gender identity. By incorporating First Amendment jurisprudence generally, and specifically as applied to transgender (as well as lesbian, gay, and bisexual) individuals, this Note sheds light on legal avenues transgender people can utilize against discrimination based on their gender expression.