Transgender Bathroom Issue -- Con Law

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lawschoold0uche
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Transgender Bathroom Issue -- Con Law

Postby lawschoold0uche » Mon Dec 04, 2017 11:09 am

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

CLS2L
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Re: Transgender Bathroom Issue -- Con Law

Postby CLS2L » Mon Dec 04, 2017 11:20 am

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

criminaltheory
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Re: Transgender Bathroom Issue -- Con Law

Postby criminaltheory » Mon Dec 04, 2017 11:21 am

From using the bathroom ever?

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Nebby
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Re: Transgender Bathroom Issue -- Con Law

Postby Nebby » Mon Dec 04, 2017 11:26 am

Equal protection analysis a la Romer v. Evans.

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pancakes3
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Re: Transgender Bathroom Issue -- Con Law

Postby pancakes3 » Mon Dec 04, 2017 11:36 am

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

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Teoeo
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Re: Transgender Bathroom Issue -- Con Law

Postby Teoeo » Mon Dec 04, 2017 1:00 pm

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 VI analysis.

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2807
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Re: Transgender Bathroom Issue -- Con Law

Postby 2807 » Mon Dec 04, 2017 2:50 pm

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?

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A. Nony Mouse
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Re: Transgender Bathroom Issue -- Con Law

Postby A. Nony Mouse » Mon Dec 04, 2017 2:53 pm

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.

NoDayButToday
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Re: Transgender Bathroom Issue -- Con Law

Postby NoDayButToday » Mon Dec 04, 2017 3:38 pm

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.

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Nebby
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Re: Transgender Bathroom Issue -- Con Law

Postby Nebby » Mon Dec 04, 2017 4:40 pm

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.

lawschoold0uche
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Re: Transgender Bathroom Issue -- Con Law

Postby lawschoold0uche » Mon Dec 04, 2017 4:51 pm

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?

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pancakes3
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Re: Transgender Bathroom Issue -- Con Law

Postby pancakes3 » Mon Dec 04, 2017 4:54 pm

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.




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