Challenging Anti-Trans Legislation Under State Constitutions
My latest in the Brennan Center's State Court Report!
Earlier this afternoon, I published an piece in the Brennan Center’s State Court Report on how to use state constitutional arguments to challenge anti-trans legislation in state courts across the country. The piece is linked here.
Of everything I’ve written, I truly think that this is among the most important pieces. The near-exclusive focus on federal courts and federal constitutional claims is mind-boggling to me given the U.S. Supreme Court’s unwillingness to recognize new rights and its erosion of rights it’s previously recognized. Many state constitutions—unlike the federal constitution—contain Equal Rights Amendments that bar discrimination on the basis of “sex” or “gender.” Many others contain clear rights to privacy, either expressly written in their text or implied by state courts. And a handful, as I wrote about in Bolts earlier this year, contain “healthcare freedom” provisions that ostensibly protect an individual person’s right to seek the healthcare of their choice.
Advocates absolutely should be using state constitutions to ground their claims—not just the federal constitution. They may not always win, but it’s another avenue worth exploring. And, as I argue, even if the U.S. Supreme Court embraces their argument under the U.S. Constitution and strikes these bills down, developing a robust protection of LGBT rights at the state level is so important.