Viewpoint Discrimination, Compelled Speech, and Trans Identity

Eliot Tracz

It’s rare that an article comes along with the potential to reshape how an entire area of law is litigated. This is particularly true for articles addressing discrimination against the LGBTQ community. Katie Eyer authored such a piece,¹ which influenced the outcome in Bostock v. Clayton County.² Now, Zee Scout, in her article Trans Erasure, Intersex Manipulation: The First Amendment and Other Reflections from Women in Struggle v. Bain, has written just such a work, which promises to impact how anti-trans legislation is litigated.

Scout’s article addresses the onslaught of state legislation targeting what she refers to as transgender, gender nonconforming, intersex, and queer (TGNCI) people. While the Equal Protection Clause has long been the tool of choice to advance TGNCI rights, federal courts have begun rolling back progress.³ This rollback, according to Scout, is premised on the “real differences” doctrine, which argues that men and women have distinct biological characteristics which in turn permit certain types of distinctions in regulation. (P. 121.) As a result, states have been able to pass legislation as based on binary differences of reproductive anatomy (which of course erases intersex people entirely).

What Scout has done is respond to these types of laws with three arguments rooted in the First Amendment. Initially, she identifies several principles underlying Free Expression jurisprudence. The truth-discovery principle, embodied by Justice Holmes concept of the “market place of ideas,”⁴ posits that the best way to ascertain truth is through the free exchange of ideas. The second principle identified by Scout is the democratic process. This principal suggests that the First Amendment protects the formation of public opinion. The final principal is autonomy, which suggests that free speech allows us to define, develop, and express ourselves as individuals.

Using these three principles as a baseline, Scout offers two compelling First Amendment based arguments. The first is that anti-TGNCI legislation is a form of viewpoint discrimination. (P. 161.) It is well established that when the government chooses to propound certain messages over others, and, in the process, suppresses viewpoints it opposes, it chills speech. Scout argues that, in the context of anti-TGNCI legislation, the state uplifts a message that bathrooms, healthcare, and sports participation should be “organized exclusively around immutable birth sex.”⁵ In the process, the message promoted by the state erases TGNCI viewpoints regarding gender identity and access to sex-separated facilities and institutions. Scout further develops, in detail, those TGNCI viewpoints and places the argument in the context of Florida’s bathroom ban.⁶ The effect is an impactful and original application of the First Amendment to anti-TGNCI laws and really any anti-LGBTQ, legislation.

Scout also offers a second novel application of the First Amendment to anti-TGNCI legislation through the application of the Compelled Speech Doctrine. It is well understood that the First Amendment prohibits the government from compelling people to choose between compliance with the law and engaging in sincere expressive speech. Indeed, this principle was at the heart of 303 Creative LLC v. Elenis,⁷ a recent case viewed as a defeat for the LGBTQ community. The Compelled Speech doctrine has been used to stifle anti-discrimination laws, so it is fitting that Scout turns it into a tool to combat anti-TGNCI legislation by pointing out that such legislation forces TGNCI people to choose between violating their beliefs and potentially endangering their personal safety, or affirming their beliefs and risking punishment under the law. The result is that it is often the case that TGNCI individuals are forced to become bearers of the State’s message.

Of course, Scout has done her due diligence and addresses a number of counter arguments. There is not space here to address them in detail, but despite some strong arguments, Scout’s application of the First Amendment holds up well. Both of her arguments are worthy of application in the courts.

Zee Scout has given us a formula for a rekindled hope for equality. To be clear, the use of the First Amendment in LGBTQ rights cases is not new. Sometimes it has been wielded as a sword to strike at anti-LGBTQ policies,⁸ while at other times is has been used as a shield to protect private interests from having to accept LGBTQ people.⁹ What Scout has done is repurpose the First Amendment in a novel, compelling manner to breathe new life into the fight for TGNCI rights. Whether you are a scholar, a litigator, or simply an interested party, this article is worth a read or two. But once you’re done reading, it’s time to think about how to apply these arguments.

1. See Katie Eyer, Statutory Originalism and LGBT Rights, 54 Wake Forest L. Rev. 63 (2019).
2. Bostock v. Clayton County, 590 U.S. 644 (2020).
3. See Adams ex rel. Kasper v. Sch. Bd. Of St. Johns Cnty., 57 F.4th 791 (11th Cir. 2022); L.W. ex rel. Williams v. Skrmetti, 83 4th 460 (6th Cir. 2023).
4. See Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting).
5. Id. at 163.
6. Fla. Stat §553.865
7. 303 Creative v. Elenis, 600 U.S. 570 (2023)
8. See, e.g., Fricke v. Lynch, 491 F. Supp. 381 (Dist. RI 1980); Doe v. Yunits, 2000 WL33162199 (Sup. Ct. Mass. 2000).
9. See Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, 515 U.S. 557 (1995).