The First Amendment is a source of anxiety these days, for queer communities specifically and progressive communities more broadly. That anxiety is not unfounded. From efforts to erode LGBTQ anti-discrimination laws to decisions striking down common-sense regulations providing women information on their reproductive options, the First Amendment is being deployed as a deregulatory tool. But disquiet regarding the First Amendment’s transformation into a conservative cudgel should be tempered with an understanding of its continued emancipatory potential for queer people. Because LGBTQ movement litigation has recently favored equal protection arguments, advancing a rhetoric of sameness and conformity, we’ve forgotten what the First Amendment, focused on individual expression, can do for us. But used strategically, the First Amendment has the potential to be more radically inclusive of intersectional queer identities and diversity within LGBTQ communities than the “just-like-you” discourse of marriage equality.
In fact, history suggests that the First Amendment was in many ways the first legal foothold for LGBTQ people. As detailed in Carlos Ball’s recent book, decades before the Supreme Court would acknowledge the importance of equal treatment of same-sex relationships, the court protected the ability of queer people to express explanations of their identities and granted them leeway to gather together to further explore and elaborate those identities. In this way, the First Amendment served an important incubating function for the development of future equality and privacy arguments in favor of LGBTQ individuals while it simultaneously created space for greater visibility of queer people to each other and in American society writ large.
But the First Amendment was also the first “queer” right—as opposed to gay right—in a second sense. A strong argument can be made that when LGBTQ rights were originally pursued under the First Amendment, litigants crafted a broader, more comprehensive, and diverse tableau of queer identity. This was in part because plaintiffs were not encouraged to place themselves squarely within a particular socially constructed category or contend that they were the “same” as straight people in order to obtain equal treatment, as arguably required by more familiar equal protection doctrine.
My research of the roughly 90 cases involving around 600 plaintiffs pending in the period after Windsor and before Obergefell was decided two years later highlights that time after time, plaintiffs’ roles as parents, their religiosity, military service, law enforcement backgrounds, and professionalism were emphasized to the courts. Plaintiffs were routinely characterized as “same” or mainstream and otherwise depicted as “productive members of society.” In reality, LGB individuals face higher rates of poverty than heterosexual people, in part as a result of the lack of uniform employment and housing discrimination protections. And queer people in America are often targeted for police surveillance rather than being members of law enforcement.
Equally important in this batch of cases is what same-sex couples were, supposedly, not. Virtually none of the complaints emphasize or mention whether any of the plaintiffs are HIV-positive. Nor is there mention of any of the plaintiffs being transgender. Bisexuality is nowhere mentioned. That is, rather than exploring queer difference or queer sexuality or emphasizing the ways in which queerness intersects with and magnifies other forms of marginalization (such as poverty, immigration status, or racial discrimination), the equal protection challenges emphasized sameness, painting a highly circumscribed portrait of queer identity.
Conversely, as chronicled by Ball, in the early First Amendment LGBTQ cases from the 1950s to 1970s, courts and society were forced to confront queer difference and queer sexuality more directly. Indeed, two of the first LGBTQ cases to ever be considered by the Supreme Court were challenges to government efforts to censor publications discussing gay and lesbian subject matter for violating obscenity laws.
In a second category of First Amendment cases, courts protected the freedom of association. In cases ranging from prohibitions on gay bars to refusal to recognize queer student groups, courts began to recognize the right of LGBTQ people to congregate, socialize, and organize for the purpose of expressing their opinions. Importantly, often the opinions being expressed were in opposition to laws criminalizing same-sex sexual conduct. The free association cases provided queer communities further opportunity to introduce courts and society to their sexualities and their sexual conduct.
A third category of cases revolved around free speech challenges by public employees who had been fired for coming out of the closet. While not uniformly successful, there were nevertheless important civil servant and public employee victories, reflecting, at least in broad strokes, a judicial recognition of the relationship between identity, social context, and expression. That is, certain identities within a hegemonic cultural setting can, in and of themselves, take on a political expressive valence—one that may be entitled to First Amendment coverage.
These three categories of cases (obscenity, association, and public employee coming-out cases) created the conditions for increased visibility of queer people in American society and paved the way for the expression of equality demands that would follow. But just as significant is that they compelled, or at the very least facilitated, consideration of the sexual and political components of queer identities by courts and the American public.
And there is still opportunity for the First Amendment to deepen judicial and societal understanding of identity and social context, providing protections to a broader variety of queer identities, especially gender-nonconforming and genderqueer people. The freedom of expression can pick up where the equality litigation has left off: It has further work to do in expanding—and complicating—society’s understanding of queer identities.
Identities—including sexual and gender identities—are dynamic. And our “sexed” bodies are similarly dynamic—the product of biology and genetics, yes, but also social forces that shape and construct our bodies and identities. In turn, our outward-facing identities contribute to the social tableau and shape others’ identities. In the end, our identities say something. They say something personal and often political. They are individually expressive—even if partially (largely?) the product of social forces.
The First Amendment can help society and courts better understand these dynamics. A look at some recent examples of First Amendment litigation challenging the regulation of queer identity shows how. While this litigation often receives less attention than the equality-based marriage litigation or efforts to protect LGBTQ anti-discrimination laws from First Amendment challenges, it is no less critical and, in my view, has tremendous liberating potential.
Many jurisdictions have laws that greatly restrict or outright prohibit a person from changing the gender marker on their birth certificate or driver’s license. Transgender people and many gender-nonconforming people are exposed to discrimination and violence because of such laws, which may out their nonnormative status to potential employers or anyone else who may need to evaluate their identification. And restrictive identification laws also force—compel—people to embrace a gender and an identity that do not reflect their reality. A recent Lambda Legal lawsuit challenging Puerto Rico’s law restricting people’s ability to change the gender marker on their birth certificate makes that very point (and also centers Latinx transgender clients). The lawsuit highlights that speech and identity are often intimately linked, with self-identifying speech helping to construct queer identities and gender norms, and with compelled identification disciplining and restricting those same identities. Moreover, to the extent such lawsuits require courts to grapple with the fact that one’s gender identity and expression may be divorced from certain biological components (namely, external genitalia), these challenges have the potential to educate courts about transgender, intersex, and gender-nonconforming identities, much as the early First Amendment obscenity cases forced courts to confront gay and lesbian sexuality.
Similarly, public school districts and government employers not infrequently impose dress codes that restrict people’s ability to wear clothing that best reflects their gender or sexuality. These dress codes directly police gender and sexuality. For example, one school punished a student and forbade him from wearing a T-shirt containing a rainbow ichthys—known popularly as the “sign of the fish” or “Jesus fish,” a Christian symbol—and the slogan “Jesus Is Not a Homophobe.” Another school prohibited a black transgender student, who had been assigned a male sex at birth, from wearing a dress to prom. In another example, a school refused to permit a male student to bring another male to prom as his date. Each of these instances of government regulation of clothing and association performatively reconstructing gender and sexuality norms was successfully challenged as violating the First Amendment.
In each of these contexts, nothing about the First Amendment doctrine would necessitate painting a portrait of a plaintiff as “normal.” On the contrary, the less conforming the plaintiff, the stronger the argument that the nonconforming aspect of the plaintiff’s identity is expressive and therefore entitled to First Amendment coverage. The deviation from social norms is meaningful enough to communicate something external—and, in certain instances, is being read as expressive by the government regulator and regulated for that reason (subjecting the regulation to heightened First Amendment scrutiny).
In short, while skepticism regarding the First Amendment is warranted, the First Amendment still has the potential to enable legally protected articulation of noncategorized identities. And it also permits further, future contestation of those very same “queer” identities. In other words, the First Amendment, like the meaning of the word “queer” itself, will always encourage and reward difference.
This article draws from a piece entitled “The First Queer Right” published by the Michigan Law Review.
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