Balkinization: Gender Nonconformity and Freedom of Speech

Gender Nonconformity and Freedom of Speech

Andrew Koppelman

Sometimes radical violations of widely accepted principles hide in plain sight. In a new paper just posted on SSRN, Jeffrey Kosbie identifies one of these. Here is the abstract for his paper, “(No) State Interests in Regulating Gender: How Suppression of Gender Nonconformity Violates Freedom of Speech”:

Despite limited growth in legal protections for transgender people, dress and appearance are largely treated as unprotected matters of personal preference. In response, lawyers and scholars argue that dress and appearance are intimately connected to the expression of identity. Nonetheless, courts have generally deferred to the government’s proffered justifications for these laws.

This article refocuses on the government’s alleged interests in regulating gender nonconformity. Using a First Amendment analysis, the article reveals how seemingly neutral government interests are used to single out conduct because it expresses messages of gender nonconformity. This approach avoids impossible questions about the subjective intent of the individual to express their identity.

Drawing on social constructionist theories of gender, this article establishes that dress, appearance, and other behavior communicate the social meaning of gender, and should be understood as communicative under the First Amendment. When the state singles out conduct because it expresses gender nonconformity, the state’s interests are related to the suppression of a message. This violates freedom of speech under the governing O’Brien doctrine. Testing the theory against actual cases involving government employment, child custody, and restroom access, the article recognizes legitimate government interests in privacy, safety, and efficient workplace environments. However, the article argues that under present doctrine on freedom of speech, the government may not suppress gender nonconformity as the means of achieving these ends.

I won’t try to summarize Kosbie’s argument further. Go read the paper.

I work in the areas of both sex discrimination and free speech, and I had not seen the connection Kosbie draws until I read this paper. Now I will never be able to think about this issue the same way again. It is a major contribution.

Posted 12:27 PM by Andrew Koppelman [link]