Legal analysis: the Constitution and identity

The thing is, I'm not qualified to formulate a legal analysis, as I am no where near being a lawyer.

Scott Skinner-Thompson, however, is a law professor at NYU and has written an analysis of lawsuits brought by Lambda Legal against Idaho and Puerto Rico because those jurisdictions do not permit changes to gender markers on birth certificates that they have issued.

As outlined in the Lambda lawsuits, which challenge the Idaho and Puerto Rico policies, identification documents such as birth certificates are in many ways the gateway to accessing a whole panoply of societal benefits, including employment and housing opportunities. And these restrictive policies act as gatekeepers—burdening transgender people’s ability to participate in and enjoy public life. For instance, in order to obtain employment, people are often required to submit proof of identity and employment authorization, including a birth certificate. If the gender listed on the birth certificate does not comport with an individual’s expressed identity, intimate information about their identity, including their transgender status, could be outed, subjecting them to discrimination or even violence. The Supreme Court has suggested that the Constitution’s substantive due process protections circumscribe the government’s ability to disclose such intimate, sensitive information.

In fact, some courts have already ruled that laws strictly limiting a person’s ability to change the gender marker on a government identification run afoul of constitutional privacy protections. In K.L. v. Alaska, a case brought by the American Civil Liberties Union, an Alaska court ruled that the state’s failure to have a policy permitting individuals to change the gender marker on their driver’s license impermissibly interfered with transgender people’s right to privacy under the state constitution. Similarly, in another ACLU lawsuit, a federal court in Michigan concluded that Michigan’s restrictive policy for changing the gender marker on a driver’s license implicated the fundamental right to informational privacy under the 14th Amendment’s Due Process Clause.

But those things might be thought to be minor compared to the fundamental right for each of us to define who we are.

Who gets to define our being? The government? Some doctor somewhere who signed his name to a form and never saw us again ever? Or each autonomous individual?

Some people like to think that chromosomes define our gender, even though a chromosome karotype test is almost never performed prenatally or after birth on anyone.

As Justice Kennedy wrote as the first sentence in his the decision on Obergefell v Hodges:

The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity.

The court’s recognition that both due process and equal protection require that individuals be permitted to self-determine—to define and express themselves—has unmistakable extension to rights for the transgender community.


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Strife Delivery's picture

I just had posted in the last topic you did Robyn. Perhaps I should have posted that here instead ha.

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