Abstract

To date, 25 U.S. states have laws or regulations that limit the participation of transgender ∞ athletes to teams that correspond to their birth-assigned sex. Because transgender athletes do not identify with their birth-assigned sex, these laws are accurately characterized as trans-exclusive sports laws. They exclude transgender athletes from something that cisgender athletes take for granted— namely, the opportunity to participate in sports on the team that corresponds to one’s gender identity. So far, legal challenges have focused on the harms to equality that flow from trans-exclusive sports laws. Important as these are, equality arguments overlook an important aspect of trans-exclusive sports laws: their burdens on freedom of expression. Equal protection arguments overlook the ways in which gender identity is expressive. At the same time, they open the door to the “real differences” doctrine, which limits equal protection liability for sex classifications deemed reflective of “real” differences between men and women.

This Article develops a novel First Amendment analysis of trans-exclusive sports laws. Specifically, it identifies a conflict between trans-exclusive sports laws and the First Amendment guarantee against compelled speech. In a nutshell, by requiring trans athletes to either play their sport on a team that is publicly identified with their birth-assigned sex or give up their sport altogether, trans- exclusive sports laws compel trans athletes to send a message about their gender identity that these athletes sincerely disavow. By doing so, trans-exclusive sports laws violate the First Amendment guarantee against compelled speech.

The argument for this conclusion proceeds as follows. Part I provides an overview of trans-exclusive sports laws (I.A). It then identifies principled, historical, and doctrinal reasons to analyze trans-exclusive sports laws from the perspective of the First Amendment (I.B). In Part II, the Article dives deeper into the First Amendment, distinguishing two strands of compelled speech doctrine: compelled association and compelled affirmation (II.A). It then extracts a unifying principle underlying both lines of doctrine: the Authenticity Principle, which bars the State from aiming to foster adherence to a particular ideological point of view by compelling someone to engage in an activity whose social meaning implies affirmation of an attitude or belief that they sincerely disavow (II.B). Finally, Part III demonstrates that trans-exclusive sports laws violate the Authenticity Principle. It demonstrates that trans-exclusive sports laws are indeed compulsory, notwithstanding the fact that transgender athletes have the nominal option of refraining from sports altogether (III.A). And it shows that trans-exclusive sports laws violate both elements of the Authenticity Principle (III.B). Indeed, compared to other exemplars, trans-exclusive sports laws arguably embody a compelled speech violation par excellence. Hence, unless these laws are narrowly tailored to some compelling state interest, they are unconstitutional on First Amendment grounds alone.