The Constitutional question about transgender rights

Is gender transition actually protected free speech?

A question that has been plaguing me over the past few years, especially lately as Republican legislatures have been attacking transgender rights across the board, is this: are transgender people actually protected under the US Constitution?

The moral panic behind gender transition has reached a fever pitch as Republicans continue to demonize and legislate against transgender rights. As of 2023, 146,300 transgender youth have either lost access or are at risk of losing access to gender-affirming care, and 86% of transgender youth express that anti-transgender legislation harms their mental health.

These attacks have become so broad and so pervasive that right wing pundit Michael Knowles announced at the 2023 Conservative Political Action Committee that “transgenderism must be eradicated from public life entirely” thus laying bare the hatred and animosity towards the transgender community.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

As we all know, the Constitution protects freedom of speech. Of all the clauses in the Bill of Rights, the First Amendment is the one most deeply ingrained as an overall part of American culture, regardless of its impact on the law. Indeed, if one were to ask almost anyone what right is most important to them as an American, Freedom of Speech would probably top the list.

Attacks on transgender rights, laws against gender transition, and the steps being taken to literally eradicate transgender people from public life entirely are blatantly unconstitutional acts by Republican legislators. This begs the question: how is gender expression NOT a form of protected free speech?

Sex and gender

While sex and gender are often conflated, especially by Conservatives, modern Western science and medicine understand sex and gender to be separate categorizations. Sex is understood as being the physical characteristics of anatomy and chromosomes, and is assigned at birth. Gender, on the other hand, is defined as “the cultural roles, behaviors, activities, and attributes expected of people based on their sex” and is socially constructed based on societal norms that change over time. A person’s gender is defined at birth based on their physical characteristics; thus a penis designates “boy” and a vagina designates “girl”.

However in transgender people this overly simplistic assignment at birth may present problems throughout their lives. In the simplest of terms, the word “transgender” encompasses all people identifying with a gender different than that assigned at birth. This creates a condition known as “dysphoria”, a pervasive sense of being “born in the wrong body” that may cause transgender people feelings of intense psychological discomfort until steps are taken to alleviate these feelings, either through gender transition or through taking one’s own life if this discomfort cannot be alleviated for whatever reason.

Transgender people often experience violence and discrimination for taking those steps to alleviate these feelings of discomfort, especially from Conservative-leaning groups that reject the idea of gender identity differing from physical sex. Broadly, gender expression is vital to transgender people’s well-being, and anti-transgender restrictions on conveying gender identity pose a threat to community health.

“Gender expression” can be defined as “how a person publicly presents their gender,” including outward appearances of dress, hair, and makeup. Clothing and attire are the most common method to express gender, but other forms of conduct that convey identity, such as chosen name and pronouns, may also fall under the definition’s umbrella. Thus gender expression must be seen as a form of protected free speech under the First Amendment.

But what exactly is protected free speech?

The Spence Test of Protected Speech

The US Supreme Court requires that the right of free speech be interpreted broadly to protect diverse forms of self-expression. The Court’s mandate extends First Amendment protections beyond solely pure speech to include expressive conduct, or behavior intended to convey a message (for example Citizens United determined political donations as a form of protected free speech).

The Spence test, named from the Supreme Court case Spence v. Washington, determines whether a form of expressive conduct is indeed expressive enough to require First Amendment protection. The test has two prongs asking whether (1) a speaker attempted to communicate specific message and (2) an audience would likely understand the message. If both are so, the expressive conduct receives Constitutional protections. The communicated message is not required to be “narrow” or “succinctly articulable” as a condition of Constitutional protection. Rather, the message must be “delivered by conduct that is intended to be communicative” and “be understood by the viewer to be communicative.”

The first prong of the Spence test asks whether someone attempts to communicate a message through non-verbal communication. It can certainly be argued that expressions of gender identity through clothing, hair styles, makeup or facial hair styles, etc. is almost always considered non-verbal communication both legally and culturally. And in fact the Supreme Court has ruled that clothing is a protected form of speech in Cohen v. California when Robert Cohen was convicted of violating state law for wearing a jacket with the message “F*ck the Draft” printed on it.

The second prong of the Spence test asks if an audience would likely understand the message. This is a little more complicated as one’s interpretation of someone’s non-verbal communication may vary from person to person, however the intent of the communicator becomes important. A transgender person not only wears clothing as a form of communication, but also changes their name and gender marker through legal means. This clearly signals their intent to live as the opposite gender that they were assigned to.

While courts are much less articulate as to the second prong of the Spence test as it pertains to transgender people, the universal behavior of reading gender expression suggests that passing this prong of the test is uncomplicated. An audience is just as likely to understand the messaging sent by a transgender person’s gender expression as they would by a cisgender person. But it is perhaps the furious uproar around transgender people itself that demonstrates an understanding of gender-expression messaging.

Gender expression passes the second prong of Spence: while specific gender messaging may be unclear to an audience, humans are generally inclined to derive themes from gender expression and are therefore likely to understand broad messages communicated via attire.

Thus other forms of gender expression, such as gender-affirming care, legal name and gender change, or bathroom use may also be considered forms of protected speech. However, hairstyle or makeup use alone may not be considered forms of protected speech under Spence as Western norms become more and more accepting of the lines being blurred between male and female hairstyles and makeup use.

Conclusion

The increasing pace of anti-transgender legislation demands an appropriate First Amendment response, and placing gender experssion squarely within the framework of the Spence test provides activists and litigators the tools they need to combat these discriminatory laws.

Through the lens of Spence, litigators can answer the Courts’ calls for detailed explanation by articulating that gender expression intentionally communicates messages that audiences readily understand. While other scholars have approached this topic, the conversations so far have overlooked information that the courts demand: the specifics of how and why gender expression is speech.

The future safety and dignity of transgender people demands an aggressive fight to vindicate civil liberties and enumerated rights. By understanding gender expression as Constitutionally-protected free speech under Spence, litigators may find the weapons they need for the battle.

Click here for a more detailed analysis of how the Spence test relates to gender expression.