As-Applied Equal Protection

Do as-applied Equal Protection claims exist? Few legal scholars have even endeavored to answer this question, as the vast majority of modern Equal Protection claims have been brought—and addressed—as facial challenges. But the propriety of as-applied Equal Protection claims has gained new importance, with a spate of recent transgender rights claims challenging systems of sex separation on an as-applied basis. As such claims recognize, while governments may possess important reasons for maintaining some continued systems of sex separation, they ordinarily lack comparably important reasons for excluding transgender individuals from gender-identity-appropriate access. This Essay takes up the question of whether as-applied Equal Protection claims exist, and it finds that—under the Supreme Court’s precedents—the answer is clearly “yes.” Indeed, in the context of intermediate scrutiny, the availability of as-applied administrative consideration is a central feature of what the Court has found will render a sex or illegitimacy classification constitutional. And where a government entity fails to provide such as-applied consideration itself, the Supreme Court has made clear that as-applied constitutional invalidation is the appropriate remedy. While intermediate scrutiny is the dominant context in which the Supreme Court has recognized as-applied Equal Protection claims, it has relied on as-applied reasoning in other Equal Protection contexts as well. Most notably, administrative applications of a law (i.e., applications of a law to a particular context by an administrator) and unusual or out-of-the-ordinary applications of a law have also been the basis for as-applied Equal Protection rulings. As-applied transgender rights challenges to systems of sex separation are also consistent with these other recognized as-applied contexts. Thus, while as-applied Equal Protection claims have rarely been the subject of scholarly study or discussion, the Supreme Court has clearly recognized such claims. As such, courts must, under existing Supreme Court precedents, address transgender litigants’ arguments on their own terms—as as-applied challenges to the assimilation of transgender individuals into systems of sex separation, rather than facial challenges to systems of sex separation themselves. As case law in this area shows, assessed on those terms, government entities can rarely demonstrate that they possess the requisite “exceedingly persuasive justification.”