Comment   |   Volume 165, Issue 1

Our Antitotalitarian Constitution and the Right to Identity

By
165 U. Pa. L. Rev. 193 (2016)

December 2016










Underlying the United States Constitution is an antitotalitarian principle—i.e., the government cannot define, regulate, or compel aspects of life that are fundamental to identity and personhood. Prohibitions of compulsory childbirth, flag salutes, ideological education, and racial separation most clearly evince this bulwark against totalitarianism.

Nonetheless, from birth, the government enforces legal gender, restricts the availability of legal gender reclassification, and prevents individuals from removing themselves from the legal gender system. The government thus affirmatively produces and compels identity on an individual level. Moreover, for trans* people, these laws cause expressive and dignitary harm, increase exposure to violence, and diminish life opportunities. Although these gender identity laws constitute a totalitarian occupation of individual lives, they have evaded constitutional scrutiny.

This Comment (1) evaluates the right to identity situated in the midst of the Constitution’s proscription of totalitarianism and (2) investigates constitutional arguments supporting trans* people’s right to self‐determine their gender identity. Specifically, this context illuminates the right to identity and how the government engages in compulsory, affirmative identity formation. Ultimately, this Comment demonstrates that for trans* people and our Constitution alike, we must eliminate totalitarian gender identity laws and totalitarianism in all forms.

Our Antitotalitarian Constitution and the Right to Identity - PennLawReview.com

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