14th Amendment Equal Protection for Some, Not All: Why Sexuality Should Be Considered A Suspect Classification for the Advancement of LGBTQ+ Rights

Cooper Menne

When the 14th Amendment was ratified in 1868, it established a constitutional guarantee of equal protection under the law. That promise has not been fully realized for the LGBTQ+ community. The 14th Amendment was one of the Reconstruction Amendments of the U.S. Constitution. It was enacted to guarantee equal rights for newly freed slaves after the end of the United States Civil War. This amendment has several important clauses, one of which is the Equal Protection Clause, providing that, “nor shall any State... deny to any person within its jurisdiction the equal protection of the laws.” [1] This clause asserts that similarly situated persons are to be treated equally and fairly under American law. [2] The Supreme Court has historically utilized the Equal Protection Clause to ban discrimination against groups by creating group-based classifications. [3] Equal Protection generally recognizes three levels of judicial scrutiny, suspect classifications, which apply to race, ethnicity, and religion. Quasi-suspect, which applies exclusively to sex and gender, and lastly, non-suspect, which applies to all other classifications, such as age and wealth. [4] The Court has solely granted suspect classifications with the highest protection under the Equal Protection Clause of strict scrutiny. [5] As a result, many oppressed groups and minorities have not been granted equal treatment and do not receive adequate protection from the law. Currently, sexuality is a non-suspect classification in the same way age is, [6] but this must change. The LGBTQ+ community has a history of facing discrimination and inequality, and so sexuality should be considered a suspect classification to safeguard LGBTQ+ rights with proper legal protection. [7]

When it comes to deciding the Constitutional protections for LGBTQ+ individuals, the Court has a historically unclear doctrinal history. One of the earliest major Supreme Court decisions regarding gay rights was Bowers v. Hardwick (1986), where the court upheld the criminalization of sodomy, stating that there was no right to sodomy in the Constitution. [8] Arguments in this case focused on the unenumerated right to privacy in the Constitution, not on equal protection. Following Bowers, in Romer v. Evans (1996), the Court struck down a Colorado amendment that violated the Equal Protection Clause. [9] The amendment proposed would have barred the Colorado government from recognizing gay or bisexual people as a protected minority class, which prompted several government officials, including a gay man named Richard Evans, to sue Colorado. Evans argued that he should receive strict scrutiny analysis in his case, the same that suspect classifications receive in an Equal Protection analysis. The Court did not answer this request, only concluding that the rational basis was strong enough to overturn the amendment: “Amendment 2 fails, indeed defies, even this conventional inquiry.” [10] This decision was unlike those in other Equal Protection cases, as the courts applied the animus doctrine. The animus doctrine requires courts to scrutinize anti-gay laws more closely than standard economic policy, yet the non-suspect designation prevents them from reviewing these measures as strictly as those involving race or religion. [11] Regardless, the precedent set by Romer proved to be insufficient in protecting LGBTQ+ people.

In Boy Scouts of America v. Dale (2000), the Court ruled 5-4 that the Boy Scouts of America had autonomy to ban gay people from serving as scout leaders. [12] The majority found no animosity in this case, highlighting the limitations and inherent subjective nature of the animosity doctrine in effectively protecting queer people. Dissenters in this case argued that even if there was no animosity, sexuality should be granted higher protection due to the historical and continuous prejudice the LGBTQ+ community faces. [13] Current constitutional doctrine is insufficient in providing enough protection for LGBTQ+ people, and sexuality should be considered a suspect classification to help safeguard LGBTQ+ rights.

In deciding what constitutes a suspect classification, the courts consider three factors: Is the characteristic of the classification immutable? Is there a history of discrimination against the classification? And can members of the group protect themselves through the traditional political process? Sexuality meets all three requirements for a suspect classification. The immutability requirement is the hardest to define, as the courts have no clear answer on exactly what immutability is. The courts have generally interpreted immutability to mean that individuals in the group are unable to control or change the characteristic of their classification and that the characteristic is emblematic of the classification. Sexuality is a product of genetic and societal factors, and it is not something that individuals can control. [14] Sexuality or queerness is also an emblematic characteristic of the LGBTQ+ community, similar to race and gender being a core, inseparable part of a person’s sense of self. By these terms, sexuality is immutable. LGBTQ+ people likewise have had a long history of facing intense prejudices, discrimination, and ostracization that courts have previously recognized in cases like Romer, Lawrence v. Texas (2000), [15] and Obergefell v. Hodges (2015). [16] The Court would easily find that LGBTQ+ people satisfy the second requirement for suspect classifications, which is considered the most important for granting higher protection. [17] While LGBTQ+ individuals can protect themselves through the traditional political process, they have much less political representation, with only 0.25% of American public officials identifying as LGBTQ+. [18] This, when compared to other protected groups like women, black people, and Jewish people, demonstrates that they are at a strong political disadvantage. To say the LGBTQ+ community is powerless would be incorrect, but so is stating that they have immense political power while state legislatures pass record-breaking amount of anti-LGBTQ+ bills throughout the country. [19] The Human Rights Commission has declared a state of emergency for LGBTQ+ Americans, showcasing the dire political situation for LGBTQ+ people in the United States. [20] Sexuality fits all three requirements for a suspect classification, and thus, the courts should grant LGBTQ+ people the suspect classification as a shield from discrimination.

Equal protection is not the only avenue for advancing LGBTQ+ rights within the legal system; other Court cases have used different arguments to extend reach and protections for the LGBTQ+ community. [21] One of these Constitutional arguments employs the right to privacy and equal liberty that LGBTQ+ people have. The privacy argument posits that sexuality is something that the state should not have power in regulating, as it is deeply personal to an individual and of little interest to the state. [22] This type of framework was first hinted at in the dissent of Bowers and later adopted in the holding of Lawrence, which overruled Bowers and decriminalized sodomy. [23] The privacy and equal liberty argument has been used in part to grant gay people the fundamental right to marry in any state under Obergefell. [24] The privacy doctrine is not unique to sexuality, and the Court has used it to grant rights in other cases, such as with the right to choose contraception in Griswold v. Connecticut (1965). [25]

Many LGBTQ+ activists have filed their cases under the Constitutional claim of free speech as [26] freedom of expression is considered the bedrock of American society and, therefore, one of the most important rights for the courts to protect. [27] LGBTQ+ rights activists have used First Amendment arguments with much success, claiming that “coming out” itself is a form of political speech and should be protected by courts to the greatest extent. [28] Both privacy and speech legal strategies advance LGBTQ+ rights and protections. Recognizing the importance of other legal strategies for LGBTQ+ rights is especially important as the current conservative-leaning Supreme Court has been extremely reluctant to introduce new suspect classifications and has also used the Equal Protection Clause to strip away benefits for minorities. [29] [30] Nevertheless, an equal protection analysis for LGBTQ+ individuals should still be sought, as it grants protection to the whole identity of the individual. Sexuality is at the heart of LGBTQ+ identity; rather than speech or privacy, which are more detached and peripheral to the individual self. Privacy analysis protects only private conduct, not public aspects of LGBTQ+ life, whereas a speech analysis encompasses the political realm rather than the social one. Only through an equal protection analysis could the private and the political spheres get connected after protecting queerness as an identity. [31] Ideally, LGBTQ+ activists should use all three strategies in tandem, tailored to their specific contexts, to further advance LGBTQ+ rights.

The continued discrimination and prejudice that LGBTQ+ individuals face within the United States is significant. Such examples include, but are not limited to, drag bans, trans-exclusionary bathroom bills, stripping of civil rights protections as well as healthcare, and forced in-school outings. [32] This political persecution, an inability to control their identity, and the history of oppression that LGBTQ+ individuals have faced justify giving sexuality the suspect classification status. It is the responsibility of the Court and the legal system to use the 14th Amendment’s Equal Protection Clause to better protect LGBTQ+ people. While other avenues for legal recourse are possible, an Equal Protection analysis could uniquely help safeguard the LGBTQ+ community from rampant oppression. While the courts of today might not seem eager to take on such a Constitutional analysis, that does not lessen the objective for LGBTQ+ activists to dismantle the core of LGBTQ+ inequality in American law by striving for a suspect classification. Only time will tell if the courts will catch up with the modern understanding of sexuality and recognize the doctrinal history set up for sexuality to be considered as a suspect classification. Until then, LGBTQ+ people must continue to fight for progress both within and outside the court system so they may be treated just like any other citizen under the law.

[1] U.S. Const. amend. XIV, § 1.

[2] Legal Information Institute, n.d. "Equal Protection," Wex, Cornell Law School, Accessed June 7, 2026, https://www.law.cornell.edu/wex/equal_protection.

[3] United States v. Carolene Products Co., 304 U.S. 144, 152 n. 4 (1938).

[4] Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, 600 U.S. 181 (2023).

[5] SFFA v. Harvard, 600 U.S. at 4.

[6] Obergefell v. Hodges, 576 U.S. 644, 660–61 (2015).

[7] Kenji Yoshino, "Suspect Symbols: The Literary Argument for Heightened Scrutiny for Gays," Columbia Law Review 96, no. 7 (November 1996): 1753, https://doi.org/10.2307/1123294.

[8] Bowers v. Hardwick, 478 U.S. 186 (1986).

[9] Romer v. Evans, 517 U.S. 620, (1996).

[10] Romer, 517 U.S. at 621.

[11] William D. Araiza, "Animus and its Discontents," Florida Law Review 71, no. 1 (January 2019): 198, https://scholarship.law.ufl.edu/flr/vol71/iss1/4.

[12] Boy Scouts of America v. Dale, 530 U.S. 640 (2000).

[13] BSA, 530 U.S. at 699.

[14] Cook, Christopher C. H. 2021. “The Causes of Human Sexual Orientation.” Theology & Sexuality 27 (1): 1–19. doi:10.1080/135583 .2020.1818541.

[15] Lawrence v. Texas, 539 U.S. 558 (2003).

[16] Obergefell v. Hodges, 576 U.S. 644 (2015).

[17] “The Constitutional Status of Sexual Orientation: Homosexuality as a Suspect Classification,” Harvard Law Review 98, no. 6 (1985): 1285–309, 1301, https://doi.org/10.2307/1340944.

[18] LGBTQ+ Victory Institute, Out for America 2024: A Census of LGBTQ+ Officials Nationwide (Washington, DC: LGBTQ+ Victory Institute, June 26, 2024), https://victoryinstitute.org/out-for-america-2024/.

[19] American Civil Liberties Union, "Mapping Attacks on LGBTQ Rights in U.S. State Legislatures in 2025," American Civil Liberties Union, last updated December 29, 2025, https://www.aclu.org/legislative-attacks-on-lgbtq-rights-2025.

[20] Human Rights Campaign, "National State of Emergency for LGBTQ+ Americans," Human Rights Campaign, June 6, 2023, https://www.hrc.org/campaigns/national-state-of-emergency-for-lgbtq-americans.

[21] Status of Sexual Orientation, 1287.

[22] Status of Sexual Orientation, 1288.

[23] Lawrence, 539 U.S. at 578.

[24] Obergefell, 576 U.S. at 12.

[25] Griswold v. Connecticut, 381 U.S. 479, 484 (1965).

[26] Status of Sexual Orientation, 1293.

[27] William N. Eskridge Jr., Nan D. Hunter, and Courtney G. Joslin, Sexuality, Gender, and the Law, 5th ed. (St. Paul, MN: Foundation Press, 2023), 109.

[28] Gay Law Students Association v. Pacific Telephone and Telegraph Co., 24 Cal. 3d 458, 467 (1979).

[29] Kenji Yoshino, "The New Equal Protection," Harvard Law Review 124, no. 3 (January 2011): 757, https://harvardlawreview.org/print/vol-124/the-new-equal-protection/.

[30] SFFA v. Harvard, 600 U.S.

[31] Status of Sexual Orientation, 1297.

[32] American Civil Liberties Union, "Mapping LGBTQ Attacks 2025."