Letting “Privates” be Private: Toward a Right of Gender Self-Determination
Samuel E. Bartos, 15 Cardozo J.L. & Gender 67 (2008)
(An excerpt is below. To view the full text, please use Westlaw, Lexis, a law library or alternative source.)
The history of constitutional law sometimes spotlights a short phrase that– like a trumpet call announcing the theme of a great symphony–rings through the decades and centuries, encapsulating an entire judicial philosophy. Justice Felix Frankfurter called John Marshall’s famous admonition that “it is a constitution we are expounding” the “single most important utterance in the literature of constitutional law.” This Note celebrates and finds hope for transgendered people in a prescient phrase, written by Justice Harlan Fiske Stone more than a century later in a famous footnote, that allowed–predicted, really–that “prejudice against discrete and insular minorities may be a special condition . . . which may call for . . . more searching judicial inquiry.”
