Laura Portuondo on "Gendered Liberty"

Laura Portuondo has posted Gendered Liberty on SSRN. This article is forthcoming in the Georgetown Law Review in 2024. The abstract previews: 

Individual liberty is ascendant in constitutional law, but only for some. First Amendment doctrine has increasingly protected liberty interests in conduct linked to conscientious identity, as exemplified by newly successful claims to religious exemptions from antidiscrimination law. This contrasts with shrinking Fourteenth Amendment protections for liberty interests in conduct linked to gender identity, as exemplified by the recently eliminated right to abortion and imperiled rights to contraception, marriage, and sexual intimacy. More muscular protections for conscientious liberty have diminished even statutory protections for gender-related conduct. The result is a liberty jurisprudence that increasingly protects conservative religious objectors, even as it increasingly dismisses marginalized gender groups. This Article argues that this disparity is neither a requirement of constitutional doctrine nor an extension of a neutral theory of liberty. Instead, it emerges from a gendered theory of liberty: one that protects the freedom to enforce traditional ideas about gender and denies the freedom to challenge them.

By describing gendered liberty, this Article shows that the fall of liberty under the Fourteenth Amendment and its rise under the First Amendment are symbiotic. These doctrines work together to launder controversial judgments about the value of gender nonconformity into seemingly neutral stories about liberty. In doing so, they permit the Supreme Court to subordinate the autonomy and self-determination of those who would defy gender stereotypes to that of those who would enforce gender stereotypes. More importantly, they permit the Supreme Court to deny that it is engaged in a project of subordination at all. This Article resists these claims of neutrality and the stories about liberty they rely on by showing that liberty includes those who do not conform to gendered expectations.