April 14, 2020 Feature

LGBT Rights and the Free Speech Clause

Kara Ingelhart, Jamie Gliksberg, and Lee Farnsworth

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Speech and
expressive conduct
are crucial to affirm
one’s identity,
exercise autonomy,
and participate
equally in society.

Speech and expressive conduct are crucial to affirm one’s identity, exercise autonomy, and participate equally in society.

Courtesy of Massonstock/getty images plus via Getty Images

Over the last ten years, courts have made meaningful progress in their recognition of the constitutional rights of lesbian, gay, bisexual, and transgender (LGBT) people. Perhaps most widely known, in Obergefell v. Hodges, 576 U.S. ___ (2015), the Supreme Court held that same-sex couples could not be excluded from the fundamental right to marry. The Court grounded its analysis in the due process and equal protection guarantees of the Fourteenth Amendment to the Constitution, which together prohibit the government from interfering with equal access to certain fundamental rights—rights so important that no amount of process is sufficient to justify their deprivation.

Other parts of the Constitution also provide protections to LGBT people. In particular, the First Amendment’s guarantee of the freedom of speech protects the rights of LGBT people to speak and express themselves openly in ways consistent with their identities. Courts have increasingly applied this principle to government laws and regulations that directly target certain behavior or that have the effect of stifling or discouraging identity-affirming speech or expression.

The First Amendment and Freedom of Speech

The First Amendment of the U.S. Constitution grants all citizens the freedom of speech. As that right has been defined in the courts, the right to freedom of speech includes not only straightforward verbal declarations but also the right to refrain from speaking and the right to free expression (to engage in conduct that communicates a particular message). That is, the freedom of speech also includes the freedom to communicate ideas through conduct. For example, the Supreme Court has afforded protection under the Free Speech Clause to political acts such as wearing black armbands to protest the Vietnam War. If the government regulates a particular class of ideological or political speech because of its content, then that regulation receives the highest possible scrutiny from courts—the regulation will be stricken unless the government can prove that it has a compelling interest in its regulation and that it tailored the regulation as narrowly as possible. In this way, the Free Speech Clause contributes to the diversity of ideological and political views in society.

The right to freedom of speech is so significant that courts even grant it protections against anticipated regulations that will infringe on these constitutional protections. Ordinarily, plaintiffs must suffer an actual or imminent injury in order to file a lawsuit and seek relief from the courts. In the free speech context, however, laws can be unconstitutional when expectation of their future enforcement can be reasonably calculated to burden protected speech, even if it does not explicitly prohibit such speech. If individuals are likely to refrain from engaging in constitutionally protected speech because of the fear of sanction, then that self-censorship creates a cognizable legal claim that entitles an individual to a remedy from the courts. This is known as the “chilling effect” of the statute—the fact that an unconstitutional statute suppresses otherwise protected speech is a sufficient injury to support a legal claim.

Expression of LGBT Identity Is Constitutionally Protected Speech

For LGBT people in particular, speech and expressive conduct are important to their ability to affirm their identities, exercise autonomy, and participate equally and with dignity in society. Courts recognize that speech or expression that discloses a person’s sexual orientation or gender identity, sometimes referred to as “coming out speech,” is a profoundly valuable viewpoint entitled to First Amendment protections. People may be more familiar with protections granted to “coming out speech” related to sexual orientation than gender identity. For example, courts have held that coming out as LGB to an employer is speech, and similarly that students’ desire to engage in conduct that reveals their sexual orientation is entitled to protection. As far back as 1974, for example, in Gay Students Org. of U. of New Hampshire v. Bonner, 367 F. Supp. 1088 (D.N.H. 1974), a federal court in New Hampshire granted protection to a gay student group on the theory that gay students coming together for social events constituted expressive conduct and association protected under the First Amendment.

Transgender people are entitled to the same protections. Measures that target a transgender person’s disclosure of their transgender status (one’s right to state “I am trans”) for adverse treatment are content-based restrictions on speech. Further, a person’s right to define and express their gender through their appearance (for example, the right of both a transgender or cisgender women share to wear a dress or a suit and express themselves in accordance with their identity) is protected free expression. Courts increasingly have acknowledged the First Amendment principles at stake with respect to policies denying transgender people the ability to live openly in accordance with their gender identities or chilling their protected speech and expression.

Many of the landmark cases that first brought light to First Amendment protections for LGBT litigants involved lawsuits in the realm of education. For example, in Weaver v. Nebo School Dist., 29 F. Supp. 2d 1279 (D. Utah 1998), a district court in Utah upheld the First Amendment right of a public school teacher to speak openly about her sexuality after her school had tried to prohibit her from mentioning her same-sex relationship to students. The court found that the school policy was clearly aimed at a particular viewpoint—other teachers were not similarly forbidden from casually mentioning their relationships. The court held that the one-sided burdens associated with the policy violated the First Amendment.

Students have also been successful in invoking these protections against schools and have succeeded in compelling their schools to provide staff training, anti-bullying enforcement, and other forms of support to guarantee students’ rights. Such claims have been based on LGBT students’ rights to discuss their sexual orientation or gender identity at school, and schools may not chill that expression by failing to provide adequate safeguards and support to LGBT students. For example, in 2000, in a case brought by an anonymous plaintiff, Doe ex rel. Doe v. Yunits, No. 001060A, 2000 WL 33162199, *3 (Mass. Super. Oct. 11, 2000), a state court in Massachusetts found that a school could not censor a transgender student’s identity-affirming speech by refusing to allow the student to wear clothing to school that affirmed and expressed her gender identity. Federal courts have similarly discussed the application of this logic to workplace dress codes that stifle identity-affirming dress or conduct.

Significantly, federal courts have also applied these principles in the military context, an area where the government is often thought to enjoy additional discretion. In 2010, a federal court struck down the military’s “Don’t Ask, Don’t Tell” policy, holding that the military could not single out LGB service members for adverse treatment. Because the policy was clearly aimed at the expression of particular ideas or beliefs, namely suppressing LGB speech or activity, the court applied strict scrutiny to the policy and held that the government could not justify a policy targeting LGB service members.

Likewise, First Amendment claims have increasingly been used as a means of combatting recent federal policies that impair the rights of LGBT people. For example, in response to the 2017 reversal of military policies permitting transgender service members to serve openly in the military, civil rights organizations promptly filed a federal lawsuit to enjoin the discriminatory policy, asserting, among other claims, violations of service members’ First Amendment rights to free speech and expression. In response, in Karnoski v. Trump, 926 F.3d 1180 (2019), a Washington federal district court entered an injunction against the policy, holding that plaintiffs were likely to succeed in showing that the transgender military service ban violated the First Amendment for penalizing transgender people for speech that discloses that they are transgender, or conduct consistent with their gender identity, and such government regulations are subject to the highest level of scrutiny. In a decision later vacated by stipulation, the court highlighted that such regulations chill speech and expression based on the content and messages conveyed by that speech and favor and amplify the voices of some viewpoints over others, unconstitutionally silencing transgender voices while amplifying those of cisgender people.

Similarly, in Cty. of Santa Clara v. Azar, No. C 19-02916 WHA (N.D. Cal. 2019), sub nom, City & Cty. of San Francisco v. Azar, 411 F. Supp. 3d 1001 (N.D. Cal. 2019), plaintiffs asserted violations of the Free Speech Clause in response to the Denial-of-Care Rule, a policy released by the Department of Health and Human Services inviting health care workers to impose their religious beliefs on patients, arbitrarily deciding who receives care and who does not while targeting reproductive health care for women and gender-affirming care for transgender patients. The Rule impermissibly chills LGBT patients from being open about their gender identity when seeking gender-affirming care, and expressing themselves in a manner consistent with their gender identity. The policy encourages LGBT people to hide their identities from medical professionals out of fear of being denied treatment because of their transgender status or gendered expressive conduct. The Rule, therefore, burdens speech based on content and viewpoint for two reasons. It chills disclosure of some gender identities but not others (transgender status versus cisgender status) and penalizes people for identical expression based on the identity of the speaker (i.e., a cisgender woman can wear a dress and indicate on a form that she is female, but a transgender woman may be denied treatment for doing the same things). By coercing transgender patients to stay in the closet and suppress who they are in order to receive proper medical care, the Rule causes harm to the patients and to the public health at large.

Implications for Future Cases Involving Discrimination Against LGBT People

Where laws, policies, or regulations single out LGBT people for adverse treatment, make it more likely that LGBT people will choose not to engage in conduct consistent with their identities, dissuade LGBT people from disclosing who they are and acting as their authentic selves, or force LGBT people to disclose their sexual orientation and gender identity in situations beyond their control, such measures receive especially exacting judicial review under the First Amendment. Although these First Amendment protections always existed, their increasing use and development in case law have significant implications for how practitioners think about protections for LGBT people in a wide spectrum of discrimination cases—from those involving schools to government services to the workplace.

Consider, for example, the following examples of theoretical school policy that would violate the rights of LGBT students: prohibiting transgender or gender nonconforming students from wearing the school’s gendered graduation attire that matches the student’s gender identity, or prohibiting transgender students from using pronouns that match their gender identity. Likewise, government benefit programs that place unique barriers to access on LGBT people for disclosing who they are or expressing themselves consistently with their gender identity raise constitutional issues. Similarly, LGBT people have a right not to be forced by their government, for example, via inaccurate government-issued identity documentation, to disclose their gender identity or sexual orientation in contexts they would prefer not to. If government programs are less welcoming to “out” LGBT people or impose unequal, additional bureaucratic or regulatory burdens on those groups, then LGBT individuals will be unconstitutionally chilled from being open about their identities in order to avoid the associated burdens as they try to access public services.

Conclusion

LGBT people engage in protected First Amendment speech and expression by speaking or acting in ways that affirm their identities. The First Amendment not only protects that speech but also prevents the government from passing laws or regulations that might “chill” that speech, meaning policies that cause LGBT people to self-censor their speech and expression about their sexual orientation or gender identity in order to avoid adverse treatment. There remains a great deal of work to do to secure equality for LGBT people in America, and the First Amendment’s Free Speech Clause provides just one more useful tool for fighting against government actions that discriminate against LGBT people. This constitutional protection is an important shield against policies that harm the LGBT community and impair the possibility of equal treatment and protection of the laws for all Americans.

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Kara Ingelhart

Kara Ingelhart is an attorney at Lambda Legal, where she is counsel in Karnoski v. Trump, a federal lawsuit challenging the constitutionality of the Trump administration’s ban on military service by transgender people, and is lead counsel in Ray v. Himes, a suit brought on behalf of transgender Ohioans seeking access to accurate birth certificates that affirm their gender identities. Both cases raise free speech claims.

Jamie Gliksberg

Jamie Gliksberg is a senior attorney at Lambda Legal, where she focuses on First Amendment issues, particularly litigating against the use of religion as a sword to unlawfully legitimize discrimination against LGBT people and people living with HIV. She is lead counsel in Marouf v. Azar and County of Santa Clara v. HHS, two federal cases that include First Amendment claims.

Lee Farnsworth

Lee received his JD with high honors from the University of Chicago Law School and subsequently served as a Public Interest Law Initiative Fellow with Lambda Legal in Chicago.

 

The opinions expressed are those of the author(s) and do not necessarily reflect the view of the firm or its clients.