Craig Konnoth (University of Virginia School of Law) has posted Why As-Applied Equal Protection Doesn’t Exist on SSRN. Here is the abstract:
In January 2026, in a case involving transgender access to sports, a doctrinal question created confusion among both Republican and Democratic appointees—whether an “as applied equal protection” claim existed. Strict scrutiny demands classifications that are well justified and contoured around the specific group. Rational basis does not. But when it comes to sex discrimination, intermediate scrutiny allows classifications to be somewhat lax. That means that the doctrine permits classifications when they are fair for most, but not all, of a group.
The answer to this question may determine the outcome of several cases involving transgender plaintiffs. Numerous laws segregate men and women based on sex—in sports, bathrooms, prisons, and domestic violence shelters to name a few. Such laws are meant to create equity for women, based on putative physical differences between the sexes, and are generally considered valid by courts and litigants. However, many of these laws define sex in ways that exclude transgender women. These transgender plaintiffs seek to raise what they call as-applied equal protection challenges: while the sex segregation is justified in most cases, they argue, the laws are invalid as applied to them. State defendants reply that because the laws are valid in most cases, intermediate scrutiny permits an imperfect fit that excludes a small number of individuals who are transgender.
While the little legal scholarship that exists on this question thus far relies on the stray quotes in various cases that Justice Barrett refers to, this Essay returns to the fundamental principles of equal protection and as-applied/facial doctrine. In so doing, it argues that the structures of the two doctrines are fundamentally incompatible and mutually exclusive—that there cannot be such a thing as an as-applied equal protection challenge. But this does not mean that the transgender plaintiffs lose. Rather, in carving out transgender individuals from laws and policies that previously included them, the states have shown intent to harm this vulnerable group.
Recommended.
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