Living Freely Behind Bars

Federal constitutional jurisprudence, as it stands today, provides insufficient protections for transgender individuals who are incarcerated. Transgender prisoners face high rates of physical and sexual assault, harassment, and other mistreatment by state and federal prison officials and individuals incarcerated with them. Commonly pursued avenues for relief—namely the Eighth Amendment, the Equal Protection Clause of the Fourteenth Amendment, and the right to privacy—present hurdles in the form of too-hard-to-meet legal standards, and they perpetuate harmful stereotypes and cultural norms that should occupy no place in modern constitutional law. This Note proposes that, instead of relying on these inadequate constitutional claims to vindicate their rights, transgender prisoners and their advocates should consider litigating under the Due Process Clause of the Fifth and Fourteenth Amendments, articulating a right to live freely in accordance with one’s gender identity. Recognition of such a right would enable plaintiffs to utilize more favorable substantive due process legal standards and eschew perpetuating outdated notions of gender within the law

Cognitive reframing · Constitutional law · Constitutional right · Due Process Clause · Equal Protection Clause · Harassment · Jurisprudence · Plaintiff · Political science · Sociology · Substantive due process · Supreme court · Transgender · Law · Law, Rights, and Freedoms · Legal and Constitutional Studies · Legal Systems and Judicial Processes · Psychology

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  Open Access•Jennifer T Aldrich, Jared Douglas Kant et al.•The AMA Journal of Ethic•2023

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  Thomas N Bradbury, Katherine Bright•Corrections•2025

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