Constitutional Law

Fact pattern

State B’s legislators worry about the high suicide rate among transgender teens and young adults, so they amend State B’s public accommodation laws. Previously, those laws prohibited discrimination only on the grounds of sexual orientation, gender, age, and disability. The amendment also prohibits discrimination against individuals who have undergone or are undergoing gender transitions. The amendment’s purpose is to deter discrimination against transgender individuals and afford them equal access to the goods, services, and privileges of different businesses and organizations.

FemmeNow is a national activist group promoting women’s equality in the workforce. It does so by pairing women with female mentors in their respective industries or occupations. Through female-to-female mentorship, the group seeks to equip women with the skills to advocate for themselves in their professions, empowering women to ask for promotions, higher salaries, and equal treatment.

After State B passes the amendment, FemmeNow denies membership to A, a transgender woman who was born a man, and who resides in State B. The organization tells A that her experiences as a transgender woman are so different from those of its other members that its services cannot help her. FemmeNow asserts that it would have to substantially alter its program and materials to accommodate A’s distinct experience.

After FemmeNow denies membership to A, A files suit in state court, arguing unlawful discrimination. In defense, FemmeNow cites the First Amendment right to freedom of association. It argues that, as applied to FemmeNow, State B’s public accommodation law is an unconstitutional infringement on its right to expressive association.

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