Abstract

The winds of change appeared to blow on June 15, 2020, when the Supreme Court decided Bostock v. Clayton County. The Bostock decision - in which the Court held that discrimination based upon an employee's gender identity violated Title VII of the Civil Rights Act - has been heralded as a revolutionary triumph for the LGBTQ+ community. And yet, while the Bostock decision dictated that employers cannot terminate people based on their gender identity, it failed in the most important regard: establishing gender identity as a protected constitutional class. The Court, however, is not unique in its failure to secure transgender rights; Congress has failed to enumerate transgender rights into law. As such, transgender people face myriad forms of discrimination at appalling rates. Moreover, anti-transgender litigation and legislation is rising-demonstrating the precarity of transgender existence.

Thus, transgender people have been relegated to a state of constitutional purgatory: their legal personhood and constitutional rights hinging on a Supreme Court decision regarding employment - not the right to exist as human beings. This Article examines how transgender people lack legal personhood and therefore do not possess fall constitutional rights. Additionally, this Article examines how the Bostock holding coupled with an absence of supportive legislation has resulted in persistent discrimination. And, ultimately, this Article postulates that without full recognition of transgender personhood by the State, transgender people will never enjoy the lives and rights afforded to many people in this country - that is, basic human rights.

Document Type

Article

Publication Date

2025

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