As the antitransgender moral panic reaches a fever pitch, transgender civil rights are becoming increasingly fragile. A potential legal defense to these attacks lies within the First Amendment: if gender expression, or the way humans communicate their gender identity, is understood to be expressive conduct, it may receive protections under the Free Speech Clause. Using the framework of Spence v. Washington, this Comment argues that gender expression is a form of speech deserving of First Amendment protection. First, a speaker can use gender expression to share information about their identity. And second, an audience is likely to understand the speaker’s general message due to the nature of human communication. The implications of this doctrine extend beyond clothing and accessories, encompassing a spectrum of elements such as naming, hairstyle, gender transition, and bathroom use, offering a comprehensive approach to safeguarding transgender individuals’ expressive rights.
Executive Editor, Volume 172, University of Pennsylvania Law Review; J.D. Candidate, 2024, University of Pennsylvania Carey Law School; M.S.S.P. Candidate, 2024, University of Pennsylvania School of Social Policy and Practice. My deepest gratitude to Professor Tobias Barrington Wolff for his expertise and invaluable support. Thanks also to Norah Huppert, Staff Attorney at Lambda Legal, for guiding me in the early stages of this project. Much appreciation goes to Law Review Editors and dear friends Joe Stuever and Anes Sung for their insight and meticulous review of this Comment. Heartfelt thanks are also due to Miles Gray for his creativity in conceptualizing the title of this work. Finally, many thanks to Abby Kasdin and Christina Bartzokis.