Home > Print > We’re All Born Naked and the Rest Is Speech

We’re All Born Naked and the Rest Is Speech

Gender Expression and the First Amendment

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.