Jillian Todd Weiss, Gender Autonomy, Transgender Identity and Substantive Due Process: Finding a Rational Basis for Lawrence V. Texas (February 18, 2010). Touro Journal of Race, Gender and Ethnicity, Vol. 5, No. 1, February 2010. Available at SSRN: http://ssrn.com/abstract=1554927
In a 2001 law review article, I suggested that there is a fundamental right to “gender autonomy” that protects people with transgender and transsexual identity. I grounded this in what was then called the “right to privacy,” an outgrowth of substantive due process. There have been significant developments in the law since then, and many commentators have discussed the possibility of a right to gender autonomy.
This article looks to review the work that has been done since that time. It also focuses on how the groundbreaking, but widely misunderstood, 2003 decision in Lawrence v. Texas impacts this right. Lawrence has made it possible to argue successfully that laws and policies impacting gender autonomy are not rationally related to state interests. This would impact gender restrictions such as those found regarding birth certificates, laws requiring or permitting sex segregation in public facilities, employment or sports, restrictions on crossdressing or transition for youth, in divorce custody situations and in prisons, health insurance exclusions, marriage restrictions, and military service laws.
