Washington Law Review

Comment

The Liberty Impact of Gender

March 17, 2020 | 95 Wash. L. Rev. 459

Abstract: Can the federal government unilaterally change your gender? In October of 2018, the New York Times revealed that the Trump Administration’s Department of Health and Human Services was considering a new federal definition of “gender.” The policy would redefine gender as a “biological, immutable condition determined by genitalia at birth.” This policy places transsex people at a substantial risk of deprivation of property and speech rights, as gender implicates both property and expression. It also impedes the exercise of substantive due process rights and privileges and immunities. For example, inaccurate gender designations can hinder a transsex parent’s ability to raise children, and accurate gender markers protect the right to a common calling by shielding transsex people from employment discrimination and procedural barriers.

This Comment argues that gender designations represent both a property right and a protected expression of speech. Government-issued gender designations, or gender markers, have taken on a special legal identity that is distinct from assigned or lived gender, and these markers frequently translate into discrete rights for transsex individuals. The Trump Administration’s policy not only upends traditional understandings of gender under state and federal law, but also attempts to dissuade transsex people from engaging in public life, and ultimately, existing in the world. Because transsex people have a liberty interest in maintaining an accurate gender designation, the Trump Administration’s redefinition is unconstitutional.

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