Remy Green

In this chapter, we posit and explore the existence of a right to transgender identity, understood as the right for transgender people to enjoy equal protections under the law such that they are not excluded from normal social and political practices due to their transgender status. Within the context of American constitutional law, we ask what level of judicial scrutiny ought to be applied to cases involving transgender discrimination as transgender discrimination (as opposed to as a sub-category of sex discrimination), a particularly pressing (and still unanswered) question given the recent explosion of anti- transgender legislation. We argue that transgender people constitute a suspect class — a designation reserved for insular minority groups that have been established to be particularly vulnerable to discrimination — which would trigger the highest level of constitutional protection. With the methodologies of experimental jurisprudence, we approach suspect classification from a distinctly empirical perspective, reviewing the available data and concluding that transgender people unambiguously meet the criteria for suspect classification on empirical grounds. Suspect classification typically triggers strict judicial scrutiny, so our finding requires that transgender discrimination cases receive strict judicial scrutiny, calling into question the both the legality of many recent anti-transgender laws nation-wide, as well the (limited) benefit of the doubt judges have offered such laws under the traditional sex discrimination rubric.

The phrase “legal name” appears everywhere, often justifying discrimination against transgender people. And wherever it appears, it seems to come with an assumption that it picks out one, clear such name for each person. So, do “legal” names as the phrase is commonly understood really exist? As far as federal and most state law is concerned, it turns out the answer is a clear 'no'. This article seeks to highlight the legal, moral, and philosophical wrongness of the notion that people have one uniquely identifying legal name. To do that, we survey the status of names in various legal domains, highlighting that legal consensus tends to be that there is no one “correct legal name” for individuals (if anything, people often have many “legal” names). We argue this common notion that every person has a single, clearly defined “legal name” is a kind of collective delusion we all seem to share (emerging somewhere in the late twentieth century), but is not grounded in legal or social reality. To address this harmful delusion, we present a series of ready-to-cite conclusions about the current state of the law and introduce a normative framework for how institutions and individuals ought to choose between people’s various legal names when referring to them. Engaging with legal theory, feminist philosophy, and philosophy of language, we discuss the social function of names and argue that names enable people to communicate important social information about themselves—which can include their gender, religion, and familial relations. Thus, we conclude by arguing that individuals and legal institutions have a normative responsibility to respect peoples’ preferred legal names, thereby allowing them to authentically represent these facets of their social identities.