I think the 1st Amendment is the pertainent text that protects the rights of the transgender community. However, " no law respecting an establishment of religion, or prohibiting the free exercise thereof" is even more apropo. I would guess that most conservatives believe in the literal word of the Old Testament where their god created Adam and Eve, a man and a woman. (Of course, if I permitted myself to burd walk in this reply, which I so want to do, I could go into detail about this lovely myth.) This is the basis of all the homo and transphobia. Their desire to keep the trans population from transitioning and be their authentic selves is an attempt to force those individuals to comply with their religious beliefs. It is as simple as that. Their phobia is not based on science or true morality. Their morality comes from a silly little story asked by early humans sitting around a fire explaining how or why men and women came to be. According to the 1st Amendment, no government, can force its citizens to conform to the mandates of any religion, this includes gender. Science confirms the existence of at least five different genders: female, male, intersex, non-binary., and transgender. Science should always take presidence over a religion based on myth.
I appreciate your work here, but I do have to disagree with your specific statement on Cohen:
>> "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." <<
This was, in fact, not central to the holding at all, and though it's been some time since I've read Cohen, I don't think you'll even find dicta asserting that clothing is a protected form of speech. The court had no trouble with this concept: the clothing wasn't speech, but the text written on the clothing was. Further, the clothing at issue wasn't even being worn at the time of Cohen's arrest (he had taken the jacked off and was carrying it -- I believe folded over his arm).
What was at issue was whether language offensive to some ("fuck") or a larger message deemed disrespectful (opposition to the draft) were sufficiently outside the bounds of acceptable discourse to make it possible for the state to ban such conduct despite the first amendment's requirement that "no law" abridge the freedom of speech.
Nothing in the decision turned on actually **wearing** the jacket. It could easily have been the cover of a book being carried, a flag draped over the same arm, whatever. The decision did not find "that clothing is a protected form of speech".
Now, that error with respect to Cohen doesn't mean that your argument has no merit, but if we want to succeed in court, we're going to have to make sure we're appropriately and accurately citing the precedents on which we rely.
Thanks for sharing your thoughts here, and the link to the Fergusson analysis, which I'll get to soon, I'm sure.
Thanks for the correction. I'm not a lawyer so I'm not privy to the exact details of these rulings so it's good to have someone with a legal background to look at these things on a deeper level. I do strongly believe that gender non-conformity should be protected free speech and I think we have a strong case to argue this in court.
There are just more details and complications than you have space for here. For instance, just because something is speech -- and even if it's "protected speech" (e.g. not obscenity) governments are allowed to regulate the "time, place and manner" of expression. Thus nude dancing is protected, but governments can forbid it outdoors in public parks. Likewise, saying you hate the governor is protected speech, but they can still ticket you for saying you hate the governor through a megaphone in a sleepy neighbourhood at 1am.
So we may encounter the problem that even after successfully arguing that gender expression is expressive conduct and therefore legally cognizable speech, courts in red states may take the position that you can express your gender in many ways, but not via medical interventions or not via your choice of public bathroom.
Indeed, because so many things can be expressions of gender, conservative fuckheads may argue that restricting a bunch of possible avenues of expression (choosing which work dress code applies to you or which bathroom to use or to seek gender-affirming medical care) is perfectly fine since you still have many other ways legally available to express your message.
So **absolutely** we should argue this, but be ready for a lot of complications. There are reasons why lawyers haven't argued free expression in, for instance, bathroom cases.
I think the 1st Amendment is the pertainent text that protects the rights of the transgender community. However, " no law respecting an establishment of religion, or prohibiting the free exercise thereof" is even more apropo. I would guess that most conservatives believe in the literal word of the Old Testament where their god created Adam and Eve, a man and a woman. (Of course, if I permitted myself to burd walk in this reply, which I so want to do, I could go into detail about this lovely myth.) This is the basis of all the homo and transphobia. Their desire to keep the trans population from transitioning and be their authentic selves is an attempt to force those individuals to comply with their religious beliefs. It is as simple as that. Their phobia is not based on science or true morality. Their morality comes from a silly little story asked by early humans sitting around a fire explaining how or why men and women came to be. According to the 1st Amendment, no government, can force its citizens to conform to the mandates of any religion, this includes gender. Science confirms the existence of at least five different genders: female, male, intersex, non-binary., and transgender. Science should always take presidence over a religion based on myth.
Wow! From skeptical to convinced in one post. Good writing!! Thanks Brianna.
Thanks for reading!
I appreciate your work here, but I do have to disagree with your specific statement on Cohen:
>> "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." <<
This was, in fact, not central to the holding at all, and though it's been some time since I've read Cohen, I don't think you'll even find dicta asserting that clothing is a protected form of speech. The court had no trouble with this concept: the clothing wasn't speech, but the text written on the clothing was. Further, the clothing at issue wasn't even being worn at the time of Cohen's arrest (he had taken the jacked off and was carrying it -- I believe folded over his arm).
What was at issue was whether language offensive to some ("fuck") or a larger message deemed disrespectful (opposition to the draft) were sufficiently outside the bounds of acceptable discourse to make it possible for the state to ban such conduct despite the first amendment's requirement that "no law" abridge the freedom of speech.
Nothing in the decision turned on actually **wearing** the jacket. It could easily have been the cover of a book being carried, a flag draped over the same arm, whatever. The decision did not find "that clothing is a protected form of speech".
Now, that error with respect to Cohen doesn't mean that your argument has no merit, but if we want to succeed in court, we're going to have to make sure we're appropriately and accurately citing the precedents on which we rely.
Thanks for sharing your thoughts here, and the link to the Fergusson analysis, which I'll get to soon, I'm sure.
Thanks for the correction. I'm not a lawyer so I'm not privy to the exact details of these rulings so it's good to have someone with a legal background to look at these things on a deeper level. I do strongly believe that gender non-conformity should be protected free speech and I think we have a strong case to argue this in court.
We should argue it!
There are just more details and complications than you have space for here. For instance, just because something is speech -- and even if it's "protected speech" (e.g. not obscenity) governments are allowed to regulate the "time, place and manner" of expression. Thus nude dancing is protected, but governments can forbid it outdoors in public parks. Likewise, saying you hate the governor is protected speech, but they can still ticket you for saying you hate the governor through a megaphone in a sleepy neighbourhood at 1am.
So we may encounter the problem that even after successfully arguing that gender expression is expressive conduct and therefore legally cognizable speech, courts in red states may take the position that you can express your gender in many ways, but not via medical interventions or not via your choice of public bathroom.
Indeed, because so many things can be expressions of gender, conservative fuckheads may argue that restricting a bunch of possible avenues of expression (choosing which work dress code applies to you or which bathroom to use or to seek gender-affirming medical care) is perfectly fine since you still have many other ways legally available to express your message.
So **absolutely** we should argue this, but be ready for a lot of complications. There are reasons why lawyers haven't argued free expression in, for instance, bathroom cases.
Thanks for bringing the topic up!
Huh. I guess that's why most lawsuits fighting anti-trans laws are using 14th Amendment equal protection clauses instead.