Can the Free Speech Clause Protect Transgender Expression from the Trump Administration?

Authors

• Daniel Cooper

Abstract

This Article explores how the Free Speech Clause can provide protection to speakers implicated by the Trump administration's executive orders restricting gender-related speech. Part I will provide an overview of how the Trump administration has directed executive authority to stifle gender-non-conforming identity and expression, how those efforts fit within the larger context of right-wing efforts to marginalize transgender people, and why the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution is not currently a useful tool for the protection of trans rights. Part II will examine efforts to regulate government employees' pronoun usage, focusing on whether such speech should be understood as employees' private speech or as an extension of government speech. Part III will examine whether the executive order regulating speech in K-12 schools impermissibly infringes on the free speech rights of students and/or their teachers. Ironically, by reviewing prior litigation that sought to prevent the mandated use of gender-affirming pronouns, advocates can develop strategies to use in defense of gender-affirming pronouns.

Disciplines

Civil Rights and Discrimination | First Amendment | Human Rights Law | Law | Law and Gender | Law and Politics

Recommended Citation

Daniel Cooper, Can the Free Speech Clause Protect Transgender Expression from the Trump Administration?, 32 Cardozo J. Equal Rts. & Soc. Just. 113 (2025).
Available at: https://larc.cardozo.yu.edu/cardozoersj/vol32/iss1/6