Our antitotalitarian Constitution and the right to identity.

Author:Ruocco, Brian T.

Underlying the United States Constitution is an antitotalitarian principle--i.e., the government cannot define, regulate, or compel aspects of life that are fundamental to identity and personhood. Prohibitions of compulsory childbirth, flag salutes, ideological education, and racial separation most clearly evince this bulwark against totalitarianism.

Nonetheless, from birth, the government enforces legal gender, restricts the availability of legal gender reclassification, and prevents individuals from removing themselves from the legal gender system. The government thus affirmatively produces and compels identity on an individual level. Moreover, for trans* people, these laws cause expressive and dignitary harm, increase exposure to violence, and diminish life opportunities. Although these gender identity laws constitute a totalitarian occupation of individual lives, they have evaded constitutional scrutiny.

This Comment (1) evaluates the right to identity situated in the midst of the Constitution's proscription of totalitarianism and (2) investigates constitutional arguments supporting trans* people's right to self-determine their gender identity. Specifically, this context illuminates the right to identity and how the government engages in compulsory, affirmative identity formation. Ultimately, this Comment demonstrates that for trans* people and our Constitution alike, we must eliminate totalitarian gender identity laws and totalitarianism in all forms.

INTRODUCTION I. TRANS* PEOPLE AND GENDER IDENTITY A. Legal Gender and Legal Gender Documentation B. Reclassifying One's Gender C. The Government's Impermissible Appropriation of Identity II. CONSTITUTIONAL PROSCRIPTIONS AGAINST TOTALITARIANISM A. The Constitution's Antitotalitarian Principle in Substantive Due Process B. The Constitution's Antitotalitarianism in First Amendment Jurisprudence III. UNCONSTITUTIONAL TOTALITARIANISM DIRECTED AT TRANS* PEOPLE A. Compulsory Gender Identity Is Impermissible Totalitarianism 1. Compulsory Gender Identity Impermissibly Appropriates Individual Identity, Autonomy, and Self-Definition 2. Compulsory Gender Identity Violates the First Amendment Right to Freedom From Compelled Speech B. Affording Trans* People Limited Agency Within a Restrictive Legal Gender Matrix Does Not Eliminate Unconstitutional Totalitarianism IV. OPPORTUNITIES TO ELIMINATE CONSTITUTIONAL VIOLATIONS A. The Government Must Eliminate or Limit the Use of Legal Gender B. The Government Must Respect Self-Determined and Self-Expressed Identity CONCLUSION INTRODUCTION

Our Constitution proscribes totalitarian government. Under the letter and spirit of the Constitution, the United States government cannot define, regulate, or compel aspects of life that are fundamental to identity and personhood. It cannot occupy our lives or enforce conformity and subservience to the State in the way a totalitarian government would.

Certain freedoms serve as a bulwark against government-compelled identity and conformity. Those freedoms protect us from government attempts to submerge the individual beneath the State. For example, the government cannot force women to bear children and take on motherhood, (1) compel children to salute the flag, (2) or compel veterans to swear allegiance to the government. (3) It cannot prevent adults from marrying individuals of the opposite race or same gender. (4)

The seminal 1923 case Meyer v. Nebraska evinces this proscription against totalitarianism. Under the Fourteenth Amendment's guarantee of liberty, the Supreme Court struck down a Nebraska law prohibiting the teaching of modern languages like German, French, Spanish, and Italian in schools prior to the completion of eighth grade, (5) even though the Fourteenth Amendment does not address a right to language or schooling. (6) Rather, the dispositive liberty interest in Meyer was freedom from totalitarian government. While "Sparta assembled the males at [age] seven into barracks and intrusted their subsequent education and training to official guardians" to "submerge the individual and develop ideal citizens," and Plato envisioned the State communally raising the children of the guardians, our Constitution would not allow such institutions. (7) As Justice McReynolds wrote,

Although [the] measures [of Sparta and Plato] have been deliberately approved by men of great genius, their ideas touching the relation between individual and State were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any legislature could impose such restrictions upon the people of a State without doing violence to both [the] letter and spirit of the Constitution. (8) The Meyer Court did not focus on what the Nebraska law prohibited. Rather, the Court focused on the law's affirmative work--its attempt to produce and compel uniformity of thought and identity. Thus, to determine whether governmental action violates the Constitution's proscription against totalitarianism, courts must evaluate not "what is being prohibited, but what is being produced" and "the real effects that conformity with the law produces at the level of everyday lives and social practices." (9) The proscription against totalitarianism prohibits restrictions on liberty that produce conformity with respect to individual lives. Essentially, any law that produces a relation between the individual and the State that evinces impermissible government control over individuals is totalitarian and does violence to the letter and spirit of the Constitution.

The proscription against totalitarianism prohibits government occupation of individual lives. It does not, of course, bar all government restrictions on liberty. The government may forbid or circumscribe some acts and liberties, such as murder or drug use. (10) The antitotalitarian principle respects "the balance which our Nation, built upon postulates of respect for the liberty of the individual, has struck between that liberty and the demands of organized society." (11) Accordingly, even in an antitotalitarian regime, laws may interject some norms and practices that affirmatively shape our lives and help sustain order. There is not an unlimited, unburdened right to define oneself. Rather, the antitotalitarian principle "prevents] the state from taking over, or taking undue advantage of, those processes by which individuals are defined." (12)

One way the government affirmatively produces identity and conformity is by documenting and enforcing legal gender. When a baby is born, the baby is assigned "male" or "female" identity based on genital appearance. This "male" or "female" identity is recorded on a birth certificate, becomes the baby's legal gender, and helps structure the individual's life. This identity affects how the individual navigates sex-segregated facilities, legal documentation, gendered expectations, and interactions with state and nonstate entities. (13)

For most people, this assigned legal gender will raise little to no concern because most people identify with their assigned legal gender. Nevertheless, "[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant." (14) In the context of legal gender, trans* (15) people are the ones who find themselves most encumbered. Specifically, trans* people who do not identify with their legal gender experience intense expressive and dignitary harm and are often subjected to violence, harassment, and assault when they present incongruent legal documents. (16) For those who wish to reclassify their legal gender, a complex legal matrix awaits. (17) Therefore, trans* people are the proper focus of the constitutional inquiry regarding legal gender identity.

The imposition of gender identity on trans* people inverts the typical relationship between the individual and the State. Typically, the Constitution allows individuals to self-regulate and self-govern regarding matters of personhood and identity; the government restricts certain liberties to promote ordered liberty and justice, (18) but does not impose identity. Ultimately, the Constitution proscribes the government's totalitarian enforcement of gender identity on trans* people. Therefore, for both trans* people and the Constitution, we must eliminate these totalitarian gender identity laws.

Thus, this Comment seeks to (1) evaluate the constitutional right to identity situated in the Constitution's proscription against totalitarianism and (2) investigate constitutional arguments for the right of trans* people to self-determine their gender identity. This context illuminates the right to identity and how the government engages in compulsory, affirmative identity formation.

Part I of this Comment addresses (1) legal gender and how it is documented, (2) how trans* people are (or are not) afforded the opportunity to self-define their legal gender, and (3) how the government impermissibly appropriates trans* people's gender identities to buttress normative conceptions of sex and gender. Part II analyzes the Constitution's proscription against totalitarianism and the constitutional right to identity in both substantive due process and First Amendment jurisprudence. Part III evaluates how trans* people can situate gender identity claims within a constitutional framework of antitotalitarianism and the right to identity. Finally, Part IV evaluates how the government can eliminate unconstitutional violations of trans* people's rights.


    1. Legal Gender and Legal Gender Documentation

      Although legal gender is ubiquitous in the United States, people whose gender identity matches their legal gender may be unaware of the insidious ways that legal gender affects trans* people. (19) Gender is at the core of identity and helps shape interactions with the world. (20) Considering the countless ways in which names, pronouns, facilities, toys, and...

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