Congressional Enforcement of Transgender Rights: Remedying Anti-Transgender Constitutional Harms Under the Enforcement Clause

*Attorney. J.D., University of Virginia School of Law, 2022. Thanks to Richard Re, Craig Konnoth, Kevin Schascheck II, Rachel Slepoi, and Leigh Dannhauser for their invaluable feedback. I am also grateful to Nathaniel Glass, Courtney Douglas, and the rest of the editors on the Virginia Law Review for their excellent work.Show More

Introduction

Over the past five years, trans Americans have faced a number of intrusions on their rights. States across the country have enacted laws that “bar trans participation on sports teams, ban the use of bathrooms consistent with one’s gender identity, prevent access to accurate identification documents, prohibit drag shows, prevent the discussion of queer identities in public schools, and ban queer books.”¹ 1.Scott Skinner-Thompson, Trans Animus, 65 B.C. L. Rev. 965, 968 (2024).Show More Perhaps the most harmful and widespread of these laws are those banning trans youth from accessing gender-affirming care.² 2.See Kiara Alfonseca, Record Number of Anti-LGBTQ Legislation Filed in 2023, ABC News (Dec. 28, 2023, 5:59 AM), https://abcnews.go.com/US/record-number-anti-lgbtq-legis‌lationfiled-2023/story?id=105556010 [https://perma.cc/2VBX-K8F2] (“The vast majority of legislation passed across the country has impacted gender-affirming care for minors . . . .”); Christy Mallory & Elana Redfield, Williams Inst., UCLA Sch. of L., The Impact of 2023 Legislation on Transgender Youth 1, 4 (2023), https://williamsinstitute.law.ucla.edu/wp-cont‌ent/uploads/Trans-Legislation-Summary-Oct-2023.pdf [https://perma.cc/4X35-CQJQ].Show More Going through puberty is a difficult experience for any adolescent. But for trans youth, the experience can be excruciating. Without access to gender-affirming care, trans youth may face “severe mental health problems, including depression, social anxiety, and suicidal thoughts and behavior.”³ 3.Outlawing Trans Youth: State Legislatures and the Battle Over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2168 (2021).Show More Thus, “[e]very major medical association and leading world health authority supports health care for transgender people and youth.”⁴ 4.GLAAD, Medical Association Statements in Support of Health Care for Transgender People and Youth (June 26, 2024), https://glaad.org/medical-association-statements-supportin‌g-trans-youth-healthcare-and-against-discriminatory/ [https://perma.cc/4X38-T72T].Show More

Under current law, even if these gender-affirming care bans are found to be unconstitutional, trans youth will have no remedy for the harms they face until the laws are struck down. States enjoy sovereign immunity from most actions seeking monetary relief.⁵ 5.See, e.g., Hans v. Louisiana, 134 U.S. 1, 21 (1890); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53 (1996).Show More With sovereign immunity in place, the only remedy available is prospective relief preventing the states from engaging in future unconstitutional conduct.⁶ 6.See Edelman v. Jordan, 415 U.S. 651, 677 (1974) (“[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief and may not include a retroactive award which requires the payment of funds from the state treasury.” (citations omitted)).Show More Trans youth must therefore bear the costs of puberty, and of reversing the changes that puberty causes, on their own.⁷ 7.Id.Show More

By enacting and enforcing anti-trans measures, however, states have opened the door—and their wallets—for congressional intervention. This Essay argues that, because the recent proliferation of anti-trans legislation amounts to violations of the Fourteenth Amendment’s substantive provisions, the states have invited Congress to exercise its power under the Enforcement Clause to abrogate states’ sovereign immunity. Using this power, Congress may permit trans people to, at a minimum, seek monetary relief for harms caused by unconstitutional bans on gender-affirming care.⁸ 8.See infra Part II.Show More

Legislation under the Enforcement Clause to enforce the rights of trans people would not come without challenges.⁹ 9.Id.Show More For example, the Supreme Court recently heard a challenge to bans on gender-affirming care for minors under the Fourteenth Amendment’s Equal Protection Clause. In United States v. Skrmetti, the Supreme Court will determine whether laws banning transgender youth from accessing gender-affirming care constitute unlawful sex or transgender status discrimination under the Equal Protection Clause.¹⁰ 10.See L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted sub nom United States v. Skrmetti, 144 S. Ct. 2679 (2024); Petition for a Writ of Certiorari at I, United States v. Skrmetti, No. 23-477 (U.S. Nov. 6, 2023).Show More Depending on the outcome of Skrmetti, Congress’s power under the Enforcement Clause to enforce the rights of trans people may become much broader and powerful than it is now, or it may become more ambiguous and narrower. No matter the outcome of Skrmetti, however, the wave of anti-trans legislation throughout the nation is sufficient to enact some Enforcement Clause legislation.

Notwithstanding any difficulties Enforcement Clause legislation might face, Congress should seek to enact legislation enforcing the rights of trans people anyway. Enforcement Clause legislation would require the states, rather than trans people, to bear the cost of any constitutional violations. Similarly, Enforcement Clause legislation would deter states from enacting unconstitutional anti-trans legislation by opening the states to financial liability any time they cross the constitutional line.¹¹ 11.Cf. Russell M. Gold, Compensation’s Role in Deterrence, 91 Notre Dame L. Rev. 1997, 2003–07 (2016) (articulating the role of damages in deterring private actors from committing wrongdoing).Show More And, as a coequal branch of government, Congress should seek to exercise its Enforcement Clause power to participate in the process of defining the rights guaranteed by the Fourteenth Amendment and to preserve the Enforcement Clause power into the future.

The Essay proceeds as follows. Part I examines Congress’s power to abrogate state sovereign immunity under the Fourteenth Amendment’s Enforcement Clause. Part II addresses the potential avenues Congress will have for Enforcement Power legislation after Skrmetti. Part III addresses why Congress should enact legislation abrogating sovereign immunity in response to anti-trans legislation.

1.  Scott Skinner-Thompson, Trans Animus, 65 B.C. L. Rev
   

   .

   965, 968 (2024). ↑

2.  See Kiara Alfonseca, Record Number of Anti-LGBTQ Legislation Filed in 2023, ABC News (Dec. 28, 2023, 5:59 AM), https://abcnews.go.com/US/record-number-anti-lgbtq-legis‌lationfiled-2023/story?id=105556010 [https://perma.cc/2VBX-K8F2] (“The vast majority of legislation passed across the country has impacted gender-affirming care for minors . . . .”); Christy Mallory & Elana Redfield, Williams Inst., UCLA Sch. of L., The Impact of 2023 Legislation on Transgender Youth 1, 4 (2023), https://williamsinstitute.law.ucla.edu/wp-cont‌ent/uploads/Trans-Legislation-Summary-Oct-2023.pdf [https://perma.cc/4X35-CQJQ]. ↑
3.  Outlawing Trans Youth: State Legislatures and the Battle Over Gender-Affirming Healthcare for Minors, 134 Harv. L. Rev. 2163, 2168 (2021). ↑
4.  GLAAD, Medical Association Statements in Support of Health Care for Transgender People and Youth (June 26, 2024), https://glaad.org/medical-association-statements-supportin‌g-trans-youth-healthcare-and-against-discriminatory/ [https://perma.cc/4X38-T72T]. ↑
5.  See, e.g., Hans v. Louisiana, 134 U.S. 1, 21 (1890); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 53 (1996). ↑
6.  See Edelman v. Jordan, 415 U.S. 651, 677 (1974) (“[A] federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief and may not include a retroactive award which requires the payment of funds from the state treasury.” (citations omitted)). ↑
7.  Id. ↑
8.  See infra Part II. ↑
9.  Id. ↑
10.  See L.W. ex rel. Williams v. Skrmetti, 83 F.4th 460 (6th Cir. 2023), cert. granted sub nom United States v. Skrmetti, 144 S. Ct. 2679 (2024); Petition for a Writ of Certiorari at I, United States v. Skrmetti, No. 23-477 (U.S. Nov. 6, 2023). ↑

11.  Cf. Russell M. Gold, Compensation’s Role in Deterrence, 91 Notre Dame L. Rev

    . 1997, 2003–07 (2016) (

    articulating the role of damages in deterring private actors from committing wrongdoing). ↑