"Trans Talk" and the First Amendment

Authors

William M. Carter Jr., University of Pittsburgh School of LawFollow

Document Type

Article

Publication Date

2024

Abstract

The rights of transgender youth and their families have increasingly come under attack. In addition to barring transgender youth from participation in sports teams, from accessing bathrooms that match their gender identity, and from receiving gender-affirming healthcare, states are increasingly restricting speech and expression related to transgender issues. Courts and scholars have begun addressing the First Amendment implications of some of these restrictions, including the removal of books related to transgender issues; restrictions upon teachers' classroom speech regarding such issues; school discipline imposed upon students whose social transition includes forms of gender expression that differ from their assigned sex at birth; and bans upon doctors providing minors with referrals for gender-affirming care.

This Article breaks new ground in two respects. First, it focuses on an aspect of student speech regarding transgender issues that has not yet been addressed by courts or in the scholarly literature: namely, whether the Supreme Court's school speech cases would permit states or public school officials to restrict student speech advising a peer to obtain forms of gender-affirming care that are unlawful to minors in the state where the speech occurs. This Article is also the first to apply the history of the battles over free speech regarding slavery and of the Nation's Second Founding following the Civil War to analyze the First Amendment implications of restrictions upon student speech relating to transgender issues.

Under the classic framework of Tinker v. Des Moines School District, student speech cannot be restricted unless it causes or poses a significant risk of material and substantial disruption to the learning environment. The Supreme Court's post-Tinker school speech cases, however, have been significantly more solicitous toward school officials' efforts to restrict student speech. Opponents of gender-affirming care for minors are therefore likely to seek to rely upon the post-Tinker jurisprudence to justify restricting or punishing student speech advocating that a peer seek gender-affirming care. This Article argues that the Court's post-Tinker school speech cases cannot and should not be read to justify restrictions upon such speech. This Article further argues that extending the post-Tinker cases to allow the government to punish student speech advocating that a peer receive gender-affirming care would violate the right to freedom of speech secured at great cost by our Nation's Second Founding.

Recommended Citation

William M. Carter Jr., "Trans Talk" and the First Amendment, working paper (2024).
Available at: https://scholarship.law.pitt.edu/fac_articles/596