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How would you approach a transgender issue on a con law exam? Federal/state law banning transgenders from using the bathroom.

On one hand, make arguments based on feelings. Rebut with bible scripture and other religious texts. Done

From using the bathroom ever?

Equal protection analysis a la Romer v. Evans.

did your prof write this question for your take-home?

Can't you just look up some of the most recent appellate cases in this area and look at the briefs filed by both sides?

edit: didn't see it was con-law, deleted Title VII / Title IX analysis.

Nebby wrote:Equal protection analysis a la Romer v. Evans.

If arguing discrimination based on sex, which sex does the plaintiff claim when making the argument ?
Does the plaintiff-male say he is a female that cannot use the female restroom?
That seems a bit conclusionary.

So, one will have to prove they are the victimized-gender prior to then pleading maltreatment.

How exactly does one prove that?

2807 wrote:

Nebby wrote:Equal protection analysis a la Romer v. Evans.

If arguing discrimination based on sex, which sex does the plaintiff claim when making the argument ?
Does the plaintiff-male say he is a female that cannot use the female restroom?
That seems a bit conclusionary.

So, one will have to prove they are the victimized-gender prior to then pleading maltreatment.

How exactly does one prove that?

I’m not sure this is going to be a productive discussion bc it seems to be getting to the validity of the argument and we don’t need to go there in the on-topics.

I would try to approach is as a discrimination based on gender issue -> intermediate scrutiny / EP

Also, wasn't there a federal district court or appeals court that recently decided (like, last 2 weeks) that discrimination based on sexual orientation was gender-based discrimination? Because if so, I feel like you have a pretty good arg for extending that analysis to trans issues.

2807 wrote:

Nebby wrote:Equal protection analysis a la Romer v. Evans.

If arguing discrimination based on sex, which sex does the plaintiff claim when making the argument ?
Does the plaintiff-male say he is a female that cannot use the female restroom?
That seems a bit conclusionary.

So, one will have to prove they are the victimized-gender prior to then pleading maltreatment.

How exactly does one prove that?

I don't know. Romer v. Evans wasn't about sex-based discrimination, and the argument against transgender bathroom bans relying on Romer wouldn't be either.

pancakes3 wrote:did your prof write this question for your take-home?

No, just predicting a question on an upcoming exam because it has been such a hot topic.

I think that trying to fit it into gender discrimination would be a good route to go. But what about trying to fit it into the personal autonomy analysis in Obergefell?

lawschoold0uche wrote:

pancakes3 wrote:did your prof write this question for your take-home?

No, just predicting a question on an upcoming exam because it has been such a hot topic.

I think that trying to fit it into gender discrimination would be a good route to go. But what about trying to fit it into the personal autonomy analysis in Obergefell?

i'm far from a con law scholar but public restroom isn't the privacy/substantive due process stuff. equal protection is more on point.