Trans scholars have long theorized a fundamental right to gender autonomy under the Constitution: the right to self-determine one’s gender and to express that gender free from state interference. Such a right to gender autonomy could be a powerful tool in challenging the diverse forms of trans-restrictive legislation and regulation across the United States. Moreover, pursuit of such a right would align the interests of the trans and nonbinary community with numerous others, including the intersex community, gender-nonconforming cisgender people, and even gender traditionalists who may fear government intervention.
And yet prospects for achieving recognition of such a right to gender autonomy under the Federal Constitution currently seem bleak. As illustrated by Dobbs v. Jackson Women’s Health Organization, the Supreme Court is currently retrenching federal substantive due process protections. And the case of United States v. Skrmetti signals that the Court may be generally unreceptive to the constitutional claims of trans litigants for the foreseeable future. In this environment, it seems unlikely that even the lower federal courts will feel free to recognize a novel federal substantive due process right protective of transgender rights.
This Essay thus takes up the question of how such a right to gender autonomy might be moved from “off the wall” to “on the wall”—and suggests that state constitutions hold promise as a pathway forward. Just as gay rights advocates once used state constitutions to move sexual autonomy and marriage rights into the mainstream of constitutional law, state constitutions again today could play an important role in the legitimation and recognition of rights of gender autonomy.
There are numerous state constitutions that have more expansive protections for privacy, liberty, and dignity than the Federal Constitution. Moreover, many states have adjacent constitutional rights—such as constitutional protections for the fundamental rights of youth, or protections for medical decision-making—that could bolster a claimed right to gender autonomy in particular contexts. The Essay concludes by looking at a case study—the state of Montana—where advocates have already achieved some success in persuading the courts to recognize gender-autonomy-related rights and where state constitutional precedent holds promise for the full recognition of a right to gender autonomy.
