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University of Miami Race & Social Justice Law Review

Emily Kaufman

Document Type

Note

Abstract

Liberty has been a bedrock principle of American democracy from the time of our nation’s founding and is the norm that charters our nation’s existence. Liberty was the motivation driving the colonists’ rebellion against tyranny in order to establish a nation that would preserve liberty, at all costs. The preamble of the Constitution explicitly classifies every subsequent article’s purpose, to secure the blessings of liberty.

This note will touch on the concepts of personal liberty in the context of abortion in the landmark case Dobbs v. Jackson Women’s Health Org, and the implications of this case on the transgender community. Part A will discuss the impact of Dobbs on substantive due process within the meaning of the Fourteenth Amendment. Part B of this note will address the remaining avenue for advancing the rights of transgender individuals, under the Equal Protection Clause of the Fourteenth Amendment. Part C will examine the existing legal scholarship on how constitutional law intersects with the rights of transgender people. Finally, Part D will examine various state laws and executive orders targeting the trans community, and how they can be combatted under a due process or equal protection analysis.

Part A will be broken into three parts. Part I of this section will discuss substantive due process jurisprudence, Roe and Casey, the lead-up to Dobbs, and an examination of Dobbs itself. Part II will analyze what Dobbs means for the continued liberty of women in the modern world, while also incorporating the views of Blackstone and the philosopher John Stuart Mill. Part III will analyze the impact of the Dobbs decision as it relates to substantive due process and the transgender community, with a focus on the right to self-determination and bodily autonomy in the context of the need for hormones and other transition-related procedures necessary for trans Americans to secure the blessings of liberty.

Part B will include an initial discussion of the history and precedents of the Supreme Court that utilize equal protection analyses. Part I will discuss equal protection in the context of race. Part II will discuss recent case law from the Supreme Court and other Federal Courts using the equal protection analysis including Obergefell v. Hodges. Part III will analyze the three Circuit Courts that have taken up the issue of hormone bans for transgender youth.

Part C will examine law review articles and other scholarship that examines where transgender rights stand under the Fourteenth amendment. This section will also discuss articles that analyze how Dobbs impacts constitutional law.

Part D will compare the substantive due process arguments with that of equal protection, with a focus on cases and issues yet to be decided. Seven types of anti-transgender legislation, bills, and executive orders will be examined through a substantive due process analysis compared with that of equal protection.

This is an exceedingly fast-moving area of law, with two new Circuit Court opinions regarding bans on gender-affirming care for transgender youth coming out in the months preceding the publication of this note. During the initial drafting of the note, only one Circuit had ruled on the issue of hormone bans for trans youth, and this ruling was for the transgender plaintiffs. In the months since initial drafting, two more Circuits, the Sixth and Eleventh, have ruled against transgender youth on both equal protection and due process grounds.

Research for this note was completed on September 7th, 2023 and any cases or articles published after that date were not taken into consideration.

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