Gender Identity and The Equal Protection Clause

Genesis Martinez

Genesis Martinez*

The Equal Protection Clause (“EPC”) provides protections, for our society’s most vulnerable groups, against discrimination based on race, religion, gender, illegitimacy, national origin, and alienage.[1] The work of feminists, like Justice Ruth Bader Ginsburg, assured that despite the lack of an Equal Rights Amendment, it was recognized in that law that “discrimination on the basis of gender stereotype is sex-based discrimination.”[2] While this grant of protection seems powerful on its face, its application remains unclear because the terms “gender” and “sex” are not clearly defined in the law.  The Supreme Court, in discussing the protections of individuals under the EPC, referenced both gender and sex interchangeably.[3] Although this distinction may seem trivial, the narrow construction of these terms can result in the depravation of EPC rights for thousands, if not millions, of people. Most importantly, it exposes transgender individuals to significant risk of being left without protection under the EPC because they do not squarely fit the legal definitions of the Constitutionally protected class. But that does not suggest that the distinction between gender and sex can be easily acknowledged and implemented in the law.

Sex and gender are tricky words to define, both scientifically and socially. “Sex is a label— male or female—that you’re assigned by a doctor at birth based on the genitals you’re born with and the chromosomes you have.”[4] Sex is more of a scientific based determination and is usually referred to as “biological sex.” On the other hand, “[g]ender is much more complex[.]”[5] Scientifically, “there are a number of components that determine a person’s gender: external genitalia, internal sex organs, chromosomal sex, gonadal sex, fetal hormonal sex, hypothalamic sex, pubertal hormonal sex, neurological sex, and gender identity[.]”[6] Socially, “instead of being about body parts, . . . [gender is] more about how you’re expected to act, because of your sex.”[7] In reality, “[i]t’s a social and legal status, and set of expectations from society, about behaviors, characteristics, and thoughts. Each culture has standards about the way that people should behave based on their gender.”[8]

But in reality, not everyone’s gender matches their biological sex. “[G]ender identity’ refers to a person’s internal sense of being male, female, or another gender.”[9] On the other hand, “[a] transgender individual is someone who ‘consistently, persistently, and insistently’ identifies as a gender different than the sex they were assigned at birth.”[10] While some cisgender individuals freely conform to society’s gender norms, “[a] person is defined as transgender precisely because of the perception that his or her behavior transgresses gender stereotypes.”[11] Inherently, transgender individuals will always fall victim to discrimination based on their gender identity because “[t]he very acts that define transgender people as transgender are those that contradict stereotypes of gender-appropriate appearance and behavior.”[12]

* J.D. candidate, 2019, Florida International University (FIU) College of Law.

[1] See generally City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 440 (1985); Glenn v. Brumby, 663 F.3d 1312, 1315 n.4 (11th Cir. 2011) (explaining that state actions that discriminate against individuals based on these classifications are subject to being struck down under a heightened scrutiny judicial review. Heightened scrutiny is comprised of strict scrutiny (for suspect classes) and intermediate scrutiny (for quasi suspect classes).

[2] Glenn, 663 F.3d at 1316 (referencing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)); see also United States v. Virginia, 518 U.S. 515 (1996); Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982); Frontiero v. Richardson, 411 U.S. 677 (1973).

[3] Glenn, 663 F.3d at 1315 (emphasis added).

[4] Gender and Gender Identity, Planned Parenthood, https://www.plannedparenthood.org/learn/sexual-orientation-gender/gender-gender-identity (last visited Mar. 19, 2018).

[5] Id.

[6] Adams v. Sch. Bd. of St. Johns Cty., Fla, 318 F. Supp. 3d 1293, 1298 (2018).

[7] Gender and Gender Identity, supra note 4.

[8] Id.

[9] Adams, 318 F. Supp. at 1299 (citation omitted). Cisgender individuals’ biological sex and gender identity are one in the same. LGBTQ+ Definitions, Trans Student Educational Resources, http://www.transstudent.org/definitions/ (last visited Mar. 19, 2018).

[10] Id. at 1319 (citing Glenn, 663 F.3d at 1316).

[11] Glenn, 663 F.3d at 1316.

[12] Id. (citations omitted).