Policing Gender in Violation of the First Amendment

Photo Credit: Courtesy of torbakhopper

By Emma Ferriola-Bruckenstein, Staff Member (Vol. 16)

Gender and transgender identity has been in the news frequently over the past few years, from the rise of “bathroom bills” like North Carolina’s House Bill 2 to the threat of a “trans ban” in the military. These issues have generated headlines around the country, sparking debates about equal protection under the law and whether these actions are unlawful discrimination.

State actions like “bathroom bills”, which seek to exclude members of the transgender community from various aspects of public life, are not the only means by which transgender individuals are marginalized. Furthermore, violations of the Equal Protection Clause or the Civil Rights Act are not the only threats that transgender people face. Rather, the First Amendment rights of transgender people are also under attack due to profiling by law enforcement officers.

Walking While Trans

This phenomenon has been termed “walking while trans,” which is a phrase used to describe the harassment, discomfort, and profiling that transgender people experience every day. As the term implies, this treatment can occur even while doing something as simple as walking down the street. A common example of how walking while trans and police profiling intersect is the story of Monica Jones. Jones, a college student in Phoenix, Arizona, was arrested in 2013 for “manifesting prostitution.” Her so-called criminal act? Accepting a ride to a bar in her neighborhood.

At the time, Jones was a well-known sex work activist, but she had never actually engaged in sex work. She was, however, an African American transgender woman, which drew the unwarranted attention of the police. Something as simple as being noticeably transgender or gender non-conforming can make someone a target of police, as shown in a study by Amnesty International and acknowledged by the American Civil Liberties Union. This type of police profiling typically results in charges of prostitution. As one scholar wrote, “[g]ender nonconformity is perceived to be enough to signal ‘intent to prostitute,’ regardless of whether any evidence exists to support such an inference. When combined with hailing a cab or carrying more than one condom, it’s an open and shut case.”

This profiling results in a disproportionate number of transgender women being stopped by police, searched, questioned, arrested, and even convicted, as in the case of Monica Jones. This trend has a negative impact on the perceived sense of safety and freedom of expression of transgender people. These feelings and fears have the potential to prevent transgender people from wearing what they want to wear and generally looking how they want to look. In other words, it can prevent them from expressing their gender identity.

Expressive Conduct

More than just a disturbing trend, this type of profiling can, and should, be classified as a violation of the First Amendment rights of transgender individuals. The First Amendment has long protected more than just the spoken word. “Freedom of speech” also protects non-speech forms of expression, described as expressive conduct (Texas v. Johnson pg. 404). This category includes expressive acts, such as taping a peace sign on an American flag, burning an American flag, or wearing black arm bands to protest the Vietnam War. Supreme Court doctrine tells us that protected expressive conduct can be almost anything, so long as the conduct adheres to a two-prong test. (Spence v. Washington pg. 410–411).

This test states that (1) the conduct must intend to convey a particularized message; and (2) that within the context of the conduct, there was a strong likelihood that the message was understood by those who saw it.

Gender expression as conducted by transgender individuals passes this test and is thus protected by the First Amendment.

The Right to Gender Expression

Gender expression is the expression of one’s gender identity, meaning “the way a person communicates gender identity to others through behavior, clothing, hairstyles, voice or body characteristics.”

The most visible components of gender identity to a casual observer are external factors, such as clothing, makeup, and hairstyle. While courts have not addressed the question of whether gender expression is a form of protected expressive conduct, questions of expression through clothing have been addressed.

Clothing choice, particularly as a means of expressing gender identity, has been found to be protected conduct.  As one court stated, “[a] person’s choice of clothing is infused with intentional expression on many levels.” [Canady]. In determining whether choice of clothing constitutes expressive conduct, both prongs of the Supreme Court’s test are important: there must be a clear message, and the message must be likely to be understood.

In Zalewska v. County of Sullivan, New York, the Second Circuit clearly applied the second prong to make a distinction between clothing choice for cisgender people and clothing choice for transgender people. The court stated that a cisgender woman choosing to wear a skirt as an expression of her cultural values was not a message readily apparent to those who viewed it.

In its holding in Zalewska, however, the Second Circuit contrasted Zalewska’s situation to that of a transgender student who was denied the right to dress in accordance with her gender identity. Citing the Massachusetts superior court case Doe v. Yunitz, the court explained that a transgender teen dressing in accordance with her gender identity was “readily understood” by her peers because it was “such a break from the norm” and “sent a clear and particular message about the plaintiff’s gender identity.” In fact, in the cited case, the superior court found that the student’s right to free expression had been violated.*

Following this logic, other means of expressing gender identity, such as hairstyle, makeup, and accessories, should be treated similarly to clothing. Taken as a whole, all of these types of expressive conduct comprise gender expression. Therefore, gender expression should also be considered protected expressive conduct.

Police profiling of transgender individuals creates an environment that suppresses the ability of these individuals to express their gender identity. This action is thus a violation of the First Amendment right to expressive conduct, and should be treated accordingly.


*This opinion is presently unpublished and can only be accessed through legal databases.

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