Julia Hunter
Volume 77, Issue 4, 939-980
Just as it seems strange to lawyers in 1990 that in the early part of the twentieth century the federal Bill of Rights did not extend to protection of individuals against state government, future generations may look back and wonder why state courts have ignored their state constitutions for so long.
–Justice Shirley S. Abrahamson, Wisconsin Supreme Court
In United States v. Skrmetti, the Supreme Court rejected a landmark equal protection challenge to Tennessee’s ban on gender-affirming care for minors. In doing so, the Court substantially hindered or, at worst, entirely foreclosed federal equal protection challenges to gender-affirming
care bans. Many Americans consider the Supreme Court the final arbiter of their constitutional rights. For decades, they would have been correct—when the Court was consistently expanding fundamental liberties, there was little incentive to look elsewhere for protection. But in eras of
federal rights retrenchment, state courts have shown a willingness to step forward and interpret their constitutions independently and expansively. Because the federal judiciary has been increasingly hostile to equal protection and fundamental rights claims—a disheartening trend solidified for transgender litigants in Skrmetti—now is the time to look to state courts as a frontier for expanding transgender civil rights. In this Note, I argue that some state constitutions provide a promising avenue for equal protection claims. Where state constitutions often provide more protection than their federal counterpart, litigants should not underestimate the importance of a state law approach.