Andrea J. Schweitzer 

In accepting the Arthur Ashe Courage Award at the 2015 EPSYS, Caitlyn Jenner described her personal transition and experience learning about transgender issues as “eye-opening, inspiring [and] frightening.”[1] In her television series, I Am Cait, Jenner strives to educate the public about transgender problems.[2] Jenner is one of many who have taken on this Herculean feat to bring light to the discrimination transgender people face.[3]

For scholars, however, questions about trans-individuals’ legal rights and protections remain.[4] Uncertainty regarding protections to combat inequality and discrimination against transgender individuals arises because the federal government has left a void. In an effort to fill some of those gaps, states have enacted laws pertaining to transgender issues, but state approaches vary considerably. Some state anti-discrimination disability statutes only apply to people suffering from gender dysphoria.[5] Conversely, other states explicitly exclude coverage for gender dysphoria from their disability discrimination statutes.[6]

This Note explores how the First Amendment may protect one’s gender expression and how states have approached transgender rights through legislation. Subsequently, this Note lays out the basic tenants of First Amendment jurisprudence and the intersection of gender expression. This Note also compares three states’ approaches to the rights of transgender individuals in public schools and employment settings. Specifically, it describes transgender discrimination protections, or lack thereof, in three states: Rhode Island, New Hampshire, and Indiana. Additionally, this section of the Note comments on each state’s policies first for transgender employees and then for transgender students in public schools.                    

This Note ends with recommendations for other states considering how best to protect their transgender residents. The recommendations briefly consider where the case studies succeeded, where they failed, and how they need to continue. Moreover, the final portion of this Note calls for federal protections, at least for transgender employees who are discriminated against because of their real or perceived gender identity.[7] By incorporating First Amendment jurisprudence generally, and specifically as applied to transgender (as well as lesbian, gay, and bisexual) individuals, this Note sheds light on legal avenues transgender people can utilize against discrimination based on their gender expression.

Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.

---

[1] Caitlyn Jenner, Arthur Ashe Courage Award Acceptance Speech (July 16, 2015).

[2] I Am Cait: The Road Trip, Part 1 (Bunim/Murray Productions Aug. 2, 2015); id. Take Pride (Bunim/Murray Productions Aug. 23, 2015); id. What’s in a Name? (Bunim/ Murray Productions Sept. 6, 2015); Katy Steinmetz, The Short List No. 7: The Champion, Caitlyn Jenner, Time, Dec. 21, 2015, at 144, 146.

[3] Thomas Page McBee, Caitlyn Jenner, Glamour, Dec. 2015, at 198, 198, 216 (naming Jenner a “Woman of the Year” and labelling her “The Trans Champion” in recognition of Jenner’s advocacy work on behalf of the transgender community); Steinmentz, supra note 2, at 146 (explaining how Jenner’s public coming out and subsequent advocacy efforts earned her a spot on the magazine’s short list for “Person of the Year”). See generally Leslie Feinberg, Transgender Warriors: Making History from Joan of Arc to Dennis Rodman (1996) (chronicling a history of transgender individuals and advocates).

[4] See generally Ally Windsor Howell, Transgender Persons and the Law (2013) (providing a comprehensive overview of statutes and court opinions that involve transgender individuals).

[5] Id.

[6] Id.

[7] Jerome Hunt, Cent. for Am. Progress Action Fund, A State-by-State Examination of Nondiscrimination Laws and Policy 1 (June 2012).