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UC Law Journal

Abstract

States throughout the country are targeting LGBTQ+ youth, singling out transgender youth in particular. Part I of this Article provides an overview of laws targeting LGBTQ+ youth, and argues that many of these laws express animus towards and impose a stigma upon LGBTQ+ minor children. Though they are distinct doctrines, the Court has interwoven animus and stigma- based arguments throughout its gay rights jurisprudence to protect LGBTQ+ individuals from state action that imposes dignitary harm. Laws targeting LGBTQ+ youth often evince the same irrational hostility and stigmatizing purpose that the Court rejected decades ago.

Historically the Court’s LGBTQ+ jurisprudence has focused on adults. Yet, as Part II argues, minor children have a special claim to be protected from animus and stigmatic harm. Throughout its equal protection doctrine, the Supreme Court has repeatedly resolved profound questions of race, sex, gender, sexual orientation, and citizenship by considering how state action affects the lives, interests, and relationships of minor children. This Article demonstrates that the Court has recognized that minor children deserve heightened protection from laws that impair their ability to view themselves, their peers, and their families as equal members of the community.

The upshot of these arguments is that, when considering state laws targeting LGBTQ+ youth, the Court should probe the state’s proffered justification for pretext. As Part III argues, the most common justification for laws targeting LGBTQ+ youth—that such laws protect parental rights— is indeed pretextual. In fact, many recent state laws undermine the rights of parents of LGBTQ+ youth. Part IV proposes an alternative interpretation of recent parental rights rhetoric, arguing that this rhetoric masks a concerted political effort to re-stigmatize LGBTQ+ identity itself.

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