Jared M. Trujillo
In 2005 as a high school senior in Chicago, I found myself locked in a debate with my government teacher about gay marriage. He smugly declared “It’s not discrimination! Illinois’ marriage ban prohibits gay and straight people alike from marrying someone of the same sex.” I stared at him in disbelief with a dropped jaw and furrowed brow, as I thought I was doomed to fail the AP exam with the man who made that argument as my teacher. He mistook this look as defeat. Little did I know his “equal application theory” argument had a long pedigree stretching back to Pace v. Alabama in 1883, where the Supreme Court upheld an anti-miscegenation law because it equally punished Black and white participants.
Unfortunately, equal application theory is not a relic of the past. This September, in Corbitt v. Secretary of the Alabama Law Enforcement Agency, the U.S. Court of Appeals for the Eleventh Circuit explicitly used equal application theory to uphold an Alabama law against a Fourteenth Amendment Equal Protection challenge that prohibits transgender people from changing the gender designation on their driver’s licenses without a specific surgery under the guise that the law equally applies to cisgender and transgender people, and people of all sexes. Of course, the law is targeted at transgender people, and they are the only Alabamians negatively impacted by the policy. While the Corbitt Court was particularly blunt in its use of equal application theory, the Eleventh Circuit is not alone in this logic. Supreme Court Justice Kavanaugh entertained similar arguments on December 4th during his oral arguments in United States v. Skrmetti, a challenge to a Tennessee law that restricts minors from accessing puberty blockers, hormone therapy, and testosterone treatment only for gender-affirming care while enabling youth to continue the same treatments for reasons other than to affirm one’s gender.
This essay briefly examines the evolution of equal application theory from a Jim Crow-era tool to perpetuate white supremacy to its current iteration as a weapon of war on the transgender community’s right to exist. As the legal landscape for transgender rights continues to evolve, it is more important than ever to advocate for a substantive understanding of equality. While the fight against equal application theory could mean life or death for transgender people in legislative halls and court cases like Corbitt, the battle against this theory is also a fight for the very meaning of equal protection under the law. We are all stakeholders.
Equal Application Theory Has Always Been a Smokescreen for Discrimination
The Equal Protection Clause of the Fourteenth Amendment promises equal treatment for all under the law. However, equal application theory has always been a smokescreen for the subjugation of vulnerable groups and one of the most egregious perversions of the Fourteenth Amendment’s promise. The premise of equal application theory is that if a law or policy imposes equal consequences and equal suffering on empowered groups and vulnerable groups, courts need not apply heightened scrutiny in their Equal Protection analysis. Heightened scrutiny requires the government to clear a high bar before making distinctions between groups of people, thus making it easier for groups to challenge discriminatory laws. The Court has long applied heightened scrutiny for race and gender-based distinctions. Similarly, discrimination against transgender people is prima facie gender-based discrimination, as discrimination because of transness is inherently on the basis of an individual’s nonconformity with gender expectations and noncompliance with gender stereotypes. Many Circuit Courts, including the 11th Circuit, apply heightened scrutiny in cases of discrimination based on a person’s transness. Glenn v. Brumby, 663 F.3d 1312 (11th Cir. 2011). However, the equal application analysis allows courts to avoid applying heightened scrutiny because the discrimination is not purportedly about gender or someone’s transness, but a neutral law.
Whether a court applies heightened scrutiny is often the most essential factor in determining whether the court will strike a discriminatory law, an adverse employment decision based on animus, or discriminatory practices in housing, benefits, education, foster care, or any systems people regularly navigate. Yet, under equal application theory, courts would not have to apply heightened scrutiny because the discrimination is not discrimination at all, as all groups suffer equally. According to this flawed logic, restrictions on transgender people changing their driver’s license gender designations are not bans targeting transgender people because they also proscribe cisgender people from changing the gender marker on their driver’s licenses. Gay marriage bans are not discriminatory because straight men are prohibited from marrying men as well. Anti-miscegenation laws were not prejudiced because they treated Black and white participants equally. Because these statutes affect all groups equally, equal application theorists claim, courts need only apply the lowest tier of scrutiny rather than heightened scrutiny. The lowest tier of scrutiny is the most deferential to the government, and it gives vulnerable groups little recourse when governments target them with discriminatory policies.
Equal application is a potent tool that enables courts to pay no heed to the subjugation of vulnerable populations, which is why it has been such a popular weapon for those with oppressive desires since before the ink dried on the 14th Amendment. Yet proponents of the theory fail to realize (or at least fail to acknowledge) that the purported formal equality does not nullify the disproportionate harm that equal application laws have on vulnerable groups, nor does it recognize that the underlying reason for these policies is often animus against a vulnerable group. Equal application theory is an attempt to dodge heightened scrutiny under the guise that all groups suffer the same harm because they are proscribed from doing the same activity, when in reality only the marginalized group is harmed. For instances, cisgender people do not have the same interest in changing the gender designation on their license as transgender people, just as heterosexuals do not have the same interest in same-sex marriage as same-sex couples.
In Pace v. Alabama, state law authorized up to six months of incarceration for “living together for the purpose of adultery or fornication” between members of the same race, but the law mandated two to seven years of incarceration or carceral labor for both parties if one party were Black and the other party white. When a Black man, Tony Pace, argued that his sentence under the antimiscegenation statute violated the Equal Protection Clause because he was subjected to a substantially longer sentence solely due to the race of the person with whom he cohabitated, the Court applied equal application theory, and found the law constitutional as the law “applie[d] the same sentence to both offenders, the white and the [B]lack.” Similar antimiscegenation statutes were common in the United States until McLaughlin v. Florida (1964), and Loving v. Virginia (1967). In Loving, the Court struck an antimiscegenation ban that punished white and non-white participants in interracial relationships equally, finding that “the fact of equal application does not immunize the statute from the hefty burden of justification required of classifications based on race.” Yet, despite Loving, remnants of equal application theory persisted.
The late Justice William Rehnquist, who was Chief Justice when I debated my government teacher, used equal application theory in his dissent in Batson v. Kentucky (1986). While the majority held that the Equal Protection Clause proscribed prosecutors from striking potential jurors based on race, Justice Rehnquist wrote: “There is simply nothing ‘unequal’ about the State’s using peremptory challenges to strike blacks {sic} from the jury in cases involving black defendants, so long as such challenges are also used to exclude whites in cases involving white defendants, Hispanics in cases involving Hispanic defendants, Asians in cases involving Asian defendants, and so on.” His argument ignored the disproportionate harm racialized peremptory challenges have on Black accused persons due to structural inequities in the criminal legal systems, and the racist history of striking Black jurors not as a means of seeking equality, but of ingraining racial subordination. Notably, as a law clerk Justice Rehnquist allegedly wrote and signed a memo to his boss, which argued for the Court to decide against the plaintiffs in Brown v. Board of Education (1954), and uphold Plessy v. Ferguson’s (1896) command of “separate but equal” facilities for Black and white Americans. “Separate but equal” policies are the doctrinal sibling of equal application theory. Both argue that facial class-based distinctions are constitutionally permissible if all groups face facially equal discrimination.
Equal application theory is not limited to race-based discrimination. In Geduldig v. Aiello (1974), the Plaintiffs argued that a California disability insurance program that excluded from coverage disabilities resulting from pregnancy violated the Equal Protection Clause because the law targeted a condition that almost exclusively applied to women. The Court upheld the law, noting that it did not discriminate against women, but that it treated people equally regardless of gender as it categorized people into the groups of pregnant people not covered, and non-pregnant people who were covered. Effectively the Court held that men and women were treated equally, while ignoring that pregnancy is a condition for which only women were claiming disability in 1974.
Equal application theory has also been used to justify discrimination against lesbian, gay, and bisexual (LGB) persons. In Lawrence v. Texas (2003), the Court invalidated a state law that criminalized same-sex sodomy, but not sodomy between opposite-sex participants. While the Court’s decision did not rely on the Equal Protection Clause, nevertheless, Justice Scalia argued in dissent that the Texas law did not discriminate based on sex because men and women were equally proscribed from same-sex sodomy. Three years later in Hernandez v. Robles (2006), New York’s highest court held the state’s law that prohibited same-sex marriage did not violate the state constitution’s equal protection clause because “regardless of sexual orientation, any person can marry a person of the opposite sex.” These uses of equal application theory attempt to hide the government’s discriminatory intent under the facade of purported formal equality.
Equal Application Theory and Transgender Rights
In Corbitt, the state prohibited transgender persons from changing the gender marker on their driver’s licenses unless they had proof of obtaining a specific type of gender-affirming surgery approved by the state. However, the surgery may not be recommended by the individual’s healthcare provider, it may be cost-prohibitive, or the individual may simply not want it. Importantly, obtaining identity documents that conform to a transgender person’s gender identity can help prevent that person’s transgender status from being “outed” to third parties. “Outing” can jeopardize the individual’s employment, and housing, and subject the person to violence from law enforcement officers and within the individual’s community. An estimated 320 transgender people were killed in 2023, with a majority of those people being transgender women and Black or brown people. As noted by the Corbitt plaintiffs, many medical and mental health professionals recommend states provide transgender people with conforming identification documents without subjecting the individual to an inquisition about their medical history.
In rejecting the Plaintiffs’ Equal Protection claim, the Corbitt Court used the same flawed logic as my government teacher. The Court held that the Alabama law was not a sex-based distinction because it did not draw distinctions between those assigned male at birth, and those assigned female at birth. By refusing to recognize the discrimination as gendered, the Eleventh Circuit did not apply intermediate scrutiny. This onerous standard requires the state to prove that distinctions between classes of people are substantially related to an important government interest. Rather, the court applied the lowest level of scrutiny, which is more deferential to the state and only requires the government to prove the distinction is rationally related to a legitimate government interest.
The historical context of the Eleventh Circuit’s decision makes it particularly worrisome, and it may be a bellwether for increasing hostility toward transgender people. Thirteen years ago, the Eleventh Circuit rejected equal application theory in Glenn v. Brumby (2011), finding that the state violated the Equal Protection Clause when it fired a transgender employee solely due to her gender identity. In Glenn, the Eleventh Circuit determined that discrimination based on transgender status was discrimination because of sex and entitled to intermediate scrutiny. However, unlike in 2011, 2024 saw a record number of anti-transgender bills introduced in statehouses throughout the country, and partisan groups spent an estimated $215 million on ads attacking transgender identities in the 2024 presidential election. As transgender people take the mantle as a favorite target of those who wish to sow division and hurt vulnerable groups, courts like the Eleventh Circuit seek ways to enable harm to this group, even if it contradicts their prior decisions. Enter equal application theory. While courts can bury their heads in the sand and refuse to call anti-transgender bias what it is, transgender people must navigate systems that punish them for merely having the audacity to exist as their authentic selves. Unfortunately, suicidality is an epidemic for transgender teens, and states that passed anti-trans laws saw suicide attempts for transgender teens increase by up to 72 percent.
Trans Folks are the Canaries in the Coalmine. The Resurgence of Equal Application Theory Should Concern Everyone
While not mentioned by name, a version of equal application theory was present during oral arguments at the Supreme Court in U.S. v. Skrmetti. Justice Kentaji Brown Jackson drew parallels between Loving v. Virginia and the Tennessee law at issue. Meanwhile, Tennessee argued that the law did not draw distinctions based on gender because it treated children the same regardless of whether they were assigned male or female at birth. Naturally, the United States and the attorneys representing the transgender children vigorously argued the opposite, asking the Court to apply intermediate scrutiny. However, it is unlikely that President Trump’s administration would take a similar position. In the first two weeks of his term he passed numerous executive orders to erode rights for transgender people, including an order that prohibits schools from using transgender children’s preferred pronouns while simultaneously requiring educators to out those students to their parents, a ban on transgender military service, and in his war against Diversity, Equity and Inclusion (“DEI”) Pres. Trump rescinded a Biden-era policy that included sexual orientation and gender identity in sex discrimination protections.
It is unclear if the Corbitt decision will be appealed to the Supreme Court. Thus, Corbitt may remain good law and directly impact the lives of people living in Alabama, Georgia, and Florida – more than eleven percent of the country’s population.
If equal application theory becomes entrenched in contemporary jurisprudence, the implications could be devastating for trans rights. The argument that laws treating people based on their sex assigned at birth apply equally—without recognizing the unique impact on transgender individuals—could be used to justify a wide array of discriminatory policies. This reasoning could extend beyond gender marker policies to healthcare, employment, and education, where transgender individuals already face significant disparities.
Moreover, transgender people are not the first group subjected to equal application theory, and there is no reason to believe that they will be last. There is no reason to think that oppressive forces will not weaponize equal application theory to chip away at rights for groups that have long felt protected by the Fourteenth Amendment’s Equal Protection Clause. It is imperative that advocates consistently reject equal application theory for all marginalized groups. Litigators and policy advocates must consistently work to ensure laws recognize disproportionate impact and equity. Formal equality is not enough. If we give equal application theory room to grow, many marginalized groups may live in a world of my government teacher’s dreams.