equal protection clause

Republican-led states have passed a deluge of anti-trans legislation over the last few years, including bans on gender-affirming care, trans athletes participating in sports, and drag shows. In response, civil rights and LGBTQ+ advocacy groups have challenged the constitutionality of these new laws, primarily raising claims under the U.S. Constitution and federal statutes. Their claims have seen some early success, with Democratic- and Republican-appointed judges on federal district courts around the country handing down preliminary injunctions against the enforcement of these laws. State constitutions, however, may provide advocates with greater opportunities for pushing back against anti-trans legislation.

Given the uncertainty of how both circuit courts and the Supreme Court will come down on the constitutionality of these laws, the near-exclusive focus on federal constitutional claims is somewhat surprising. The most common argument raised by LGBTQ+ rights advocates in this litigation is that anti-trans legislation constitutes impermissible gender-based discrimination and thus runs afoul of the Equal Protection Clause. But this argument is not guaranteed to win. As the Sixth Circuit recently noted in reversing a district court’s injunction against Tennessee’s trans healthcare ban, the challenge to the law “seek[s] to extend the constitutional guarantees” under the Equal Protection Clause “to new territory.”