“Gender Expression” and the First Amendment

September 11, 2024

I have been looking into various laws around the world that restrict so-called “hate speech” in the context of “gender identity.” In doing so, I came across a law review comment titled “We’re All Born Naked and the Rest is Speech: Gender Expression and the First Amendment.” It was published earlier this year in Volume 172, Issue 3 of the University of Pennsylvania Law Review. 

The law is a bit complicated, but the gist is that the author argues that so-called “gender expression” (what she calls “the way humans communicate their gender identity”) ought to be protected under the First Amendment. The abstract: 

As the antitransgender moral panic reaches a fever pitch, transgender civil rights are becoming increasingly fragile. A potential legal defense to these attacks lies within the First Amendment: if gender expression, or the way humans communicate their gender identity, is understood to be expressive conduct, it may receive protections under the Free Speech Clause. Using the framework of Spence v. Washington, this Comment argues that gender expression is a form of speech deserving of First Amendment protection. First, a speaker can use gender expression to share information about their identity. And second, an audience is likely to understand the speaker’s general message due to the nature of human communication. The implications of this doctrine extend beyond clothing and accessories, encompassing a spectrum of elements such as naming, hairstyle, gender transition, and bathroom use, offering a comprehensive approach to safeguarding transgender individuals’ expressive rights.

So what is “gender expression” and should it be protected under the First Amendment to the US Constitution?

Paid-only content follows. If you are not already a paid subscriber and would like access to content that delves deeper into the movement to protect the sex-based rights of women and girls and to stop the abolition of sex, please consider becoming one today.